Judgment of the Court (Second Chamber) of 1 February 1979. - Fausta Deshormes, née La Valle v Commission of the European Communities. - Case 17/78.



European Court reports 1979 Page 00189

Greek special edition Page 00089

Portuguese special edition Page 00093



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATIONS TO THE COURT - DECISIONS ON CONTINGENT PENSION RIGHTS - INTEREST IN TAKING PROCEEDINGS

( STAFF REGULATIONS , ART . 91 )

2 . TEMPORARY STAFF - AUXILIARY STAFF - DIFFERENCE - WHETHER POST PERMANENT OR NOT

( CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES , ARTS . 2 ( B ) AND 3 )

Summary

1 . ALTHOUGH IT IS TRUE THAT BEFORE RETIREMENT , AN UNCERTAIN FUTURE EVENT , PENSION RIGHTS ARE CONTINGENT RIGHTS WHICH ARE IN PROCESS OF CREATION FROM DAY TO DAY , IT IS NONE THE LESS CLEAR THAT AN ADMINISTRATIVE ACT DECIDING THAT A PERIOD OF EMPLOYMENT CANNOT BE TAKEN INTO ACCOUNT FOR THE CALCULATION OF YEARS OF PENSIONABLE SERVICE IMMEDIATELY AND DIRECTLY AFFECTS THE LEGAL SITUATION OF THE PERSON CONCERNED EVEN IF THAT ACT IS TO BE IMPLEMENTED ONLY SUBSEQUENTLY . THEREFORE THE OFFICIAL HAS A LEGITIMATE , PRESENT AND VESTED INTEREST IN TAKING PROCEEDINGS AGAINST SUCH AN ACT .

2 . THE DIFFERENCE BETWEEN TEMPORARY STAFF ( WITHIN THE MEANING OF ARTICLE 2 ( B ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ) AND AUXILIARY STAFF LIES IN THE FACT THAT A MEMBER OF THE TEMPORARY STAFF FILLS A PERMANENT POST INCLUDED IN THE LIST OF POSTS OF AN INSTITUTION , WHEREAS , EXCEPT IN THE CASE OF TEMPORARY REPLACEMENT OF AN OFFICIAL , A MEMBER OF THE AUXILIARY STAFF PERFORMS ADMINISTRATIVE WORK WITHOUT BEING ASSIGNED TO A POST INCLUDED IN THE SAID LIST .

Parties

IN CASE 17/78

MRS FAUSTA DESHORMES , NEE LA VALLE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 13 A DREVE DU CAPORAL , BRUSSELS , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , ADVOCATES AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR AN ORDER THAT , FOR THE CALCULATION OF THE APPLICANT ' S YEARS OF PENSIONABLE SERVICE FOR THE PURPOSE OF HER RETIREMENT PENSION , THE DEFENDANT INSTITUTION MUST TAKE INTO ACCOUNT HER PERIODS OF EMPLOYMENT UNDER CONTRACT AS AN EXPERT AND AS A MEMBER OF THE AUXILIARY STAFF BEFORE SHE WAS ESTABLISHED , AND FOR THE ANNULMENT OF THE DECISION REJECTING THE RELATED COMPLAINT ,

Grounds

1THE APPLICANT WAS RECRUITED ON 1 JANUARY 1961 TO OCCUPY A POST IN THE UNIVERSITY INFORMATION , YOUTH AND POPULAR EDUCATION DIVISION OF THE PRESS AND INFORMATION SERVICE OF THE ECSC CORRESPONDING TO THE GRADE OF PRINCIPAL ADMINISTRATOR .

2SINCE THEN SHE HAS BEEN AND STILL IS CARRYING OUT THE SAME DUTIES AND ASSUMING THE SAME RESPONSIBILITIES IN THE SAME SERVICE , WHICH HAS SINCE BEEN ATTACHED TO THE COMMISSION .

3FROM 1 JANUARY 1961 TO 28 FEBRUARY 1964 SHE WAS BOUND TO THE COMMISSION BY A CONTRACT AS AN EXPERT WHICH WAS RENEWED FIVE TIMES ; FROM 1 MARCH 1964 TO 31 DECEMBER 1968 BY A CONTRACT AS A MEMBER OF THE AUXILIARY STAFF WITHIN THE MEANING OF ARTICLE 3 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS THE ' ' CONDITIONS OF EMPLOYMENT ' ' ) ( CATEGORY A , GROUP 1 , STEP 1 , THEN STEP 2 AS FROM 1 MARCH 1966 ), RENEWED ELEVEN TIMES ; FROM 1 JANUARY 1969 TO 31 DECEMBER 1971 BY A CONTRACT AS A MEMBER OF THE TEMPORARY STAFF WITHIN THE MEANING OF ARTICLE 2 ( CATEGORY A , GRADE 5 , STEP 3 ), RENEWED THREE TIMES ; FROM 1 JANUARY 1972 TO 30 NOVEMBER 1972 BY A CONTRACT AS A MEMBER OF THE AUXILIARY STAFF , RENEWED TWICE .

4ON 1 DECEMBER 1972 THE APPLICANT WAS APPOINTED A PROBATIONER AND BY A DECISION OF 22 OCTOBER 1973 SHE WAS ESTABLISHED WITH EFFECT FROM 1 SEPTEMBER 1973 .

5ON 18 JULY 1977 THE APPLICANT SENT THE PRESIDENT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , THE APPOINTING AUTHORITY , A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS REQUESTING THAT HER PERIODS OF EMPLOYMENT AS AN EXPERT AND AS A MEMBER OF THE AUXILIARY STAFF BE ASSIMILATED TO PERIODS OF EMPLOYMENT AS AN OFFICIAL OR A MEMBER OF THE TEMPORARY STAFF FOR THE CALCULATION OF HER YEARS OF PENSIONABLE SERVICE FOR THE PURPOSE OF HER RETIREMENT PENSION .

6IN A LETTER OF 15 FEBRUARY 1978 SIGNED BY A MEMBER OF THE COMMISSION SHE WAS GIVEN THE REPLY THAT THE PERIOD IN WHICH SHE HAD SERVED AS AN EXPERT ( 1 JANUARY 1961 TO 28 FEBRUARY 1964 ) STILL REQUIRED COMPREHENSIVE EXAMINATION , AND WITH REGARD TO THE PERIODS IN WHICH SHE HAD BEEN EMPLOYED AS A MEMBER OF THE AUXILIARY STAFF ( 1 MARCH 1964 TO 31 DECEMBER 1968 AND 1 JANUARY 1972 TO 30 NOVEMBER 1972 ) SHE WAS REMINDED THAT SHE HAD ACQUIRED PENSION RIGHTS IN THE BELGIAN PENSION SCHEME , TO WHICH THE COMMISSION HAD PAID CONTRIBUTIONS .

7IN THESE CIRCUMSTANCES THE APPLICANT APPLIED TO THE COURT ON 17 FEBRUARY 1978 FOR THE ANNULMENT OF THE DECISION REJECTING HER COMPLAINT AND AN ORDER THAT , FOR THE CALCULATION OF HER YEARS OF PENSIONABLE SERVICE FOR THE PURPOSE OF HER RETIREMENT PENSION , THE DEFENDANT MUST TAKE INTO ACCOUNT THE PERIODS OF EMPLOYMENT FROM 1 JANUARY 1961 TO 31 DECEMBER 1968 AND FROM 1 JANUARY 1972 TO 30 NOVEMBER 1972 , FOR THE PURPOSES OF THE FIRST PARAGRAPH OF ARTICLE 77 OF THE STAFF REGULATIONS .

ADMISSIBILITY

8THE DEFENDANT MAKES THREE SUBMISSIONS AS TO INADMISSIBILITY :

9IT SUBMITS FIRST OF ALL THAT THE APPLICANT DOES NOT HAVE ANY PRESENT , VESTED INTEREST TO ASSERT OR EVEN ANY DEFINITE FUTURE INTEREST BECAUSE SHE IS NOT ENTITLED TO CHALLENGE THE PRINCIPLES GOVERNING THE FUTURE PAYMENT OF HER PENSION IN LEGAL PROCEEDINGS WHILE SHE IS IN ACTIVE EMPLOYMENT , SINCE ONLY THE ACTUAL PAYMENT OF THAT PENSION , WHEN IT HAS OCCURRED , CAN FORM THE SUBJECT-MATTER OF A COURT RULING .

10ALTHOUGH IT IS TRUE THAT BEFORE RETIREMENT , AN UNCERTAIN FUTURE EVENT , PENSION RIGHTS ARE CONTINGENT RIGHTS WHICH ARE IN PROCESS OF CREATION FROM DAY TO DAY , IT IS NONE THE LESS CLEAR THAT AN ADMINISTRATIVE ACT WHICH DECIDES THAT A PARTICULAR PERIOD OF EMPLOYMENT CANNOT BE TAKEN INTO ACCOUNT FOR THE CALCULATION OF YEARS OF PENSIONABLE SERVICE IMMEDIATELY AND DIRECTLY AFFECTS THE LEGAL SITUATION OF THE PERSON CONCERNED EVEN IF THAT ACT IS TO BE IMPLEMENTED ONLY SUBSEQUENTLY .

11THE ADOPTION OF THIS FIRST SUBMISSION WOULD MEAN THAT THE APPLICANT COULD ASCERTAIN HER RIGHTS ONLY AT THE TIME OF HER RETIREMENT , AND WOULD LEAVE HER UNTIL THEN IN A STATE OF UNCERTAINTY REGARDING HER FINANCIAL SITUATION MAKING HER UNABLE IMMEDIATELY TO MAKE THE NECESSARY PERSONAL ARRANGEMENTS FOR HER FUTURE AS SHE SEES IT .

12IT FOLLOWS THAT THE APPLICANT , WHOM THE ADMINISTRATION HAS PLACED IN A COMPLEX SITUATION AS REGARDS THE COURSE OF HER CAREER , HAS A LEGITIMATE , PRESENT , VESTED AND SUFFICIENTLY CLEAR INTEREST IN HAVING AN UNCERTAIN FACTOR IN HER STATUS DECIDED FORTHWITH BY THE COURT .

13THEREFORE THE FIRST SUBMISSION MUST BE REJECTED .

14THE DEFENDANT MAKES A SECOND SUBMISSION , ARGUING THAT THE APPLICANT IS MERELY CONCERNED WITH ACTS NOT CAPABLE OF IMMEDIATELY PRODUCING ANY LEGAL EFFECT BECAUSE THEY COME WITHIN THE CATEGORY OF ADMINISTRATIVE INFORMATION OR PREPARATIONS FOR A POSSIBLE DECISION .

15THEREFORE THOSE ACTS DO NOT ADVERSELY AFFECT HER , BECAUSE THEY MERELY INDICATE INTENTIONS ABOUT A SUBSEQUENT DECISIONAL ACT , AND IN THESE CIRCUMSTANCES THE APPLICATION IS INADMISSIBLE .

16SINCE THE APPLICANT HAS A LEGITIMATE , PRESENT , VESTED INTEREST IN HER APPEAL BEING HEARD ON THE ISSUE WHETHER HER PERIODS OF EMPLOYMENT AS AN EXPERT AND AS A MEMBER OF THE AUXILIARY STAFF ARE TO BE COUNTED AS YEARS OF PENSIONABLE SERVICE FOR THE PURPOSE OF HER RETIREMENT PENSION , THERE IS NO NEED TO RULE ON THE SUBMISSION OF INADMISSIBILITY BASED ON THE PREPARATORY NATURE OF THE CONTESTED ACT , BECAUSE IT WILL BE DEALT WITH AS PART OF THE SUBSTANCE OF THE CASE ALONG WITH ALL THE FACTORS IN THE CASE FILE .

17IT FOLLOWS THAT THE SECOND SUBMISSION IS IRRELEVANT AND MUST BE REJECTED .

18THE COMMISSION MAKES A THIRD SUBMISSION OF INADMISSIBILITY ON THE GROUNDS THAT THE APPLICANT FAILED TO OBSERVE THE LIMITATION PERIOD LAID DOWN IN ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , WHICH PROVIDES THAT AN APPEAL TO THE COURT OF JUSTICE IS ADMISSIBLE ONLY IF A COMPLAINT HAS PREVIOUSLY BEEN SUBMITTED TO THE APPOINTING AUTHORITY WITHIN THREE MONTHS OF THE ACT ADVERSELY AFFECTING THE PERSON CONCERNED .

19IN THE PRESENT CASE , THAT ACT CONSISTS ACCORDING TO THE DEFENDANT , IN THE LETTER OF 14 SEPTEMBER 1976 FROM THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION OF THE DIRECTORATE FOR PERSONNEL STATING IN ANSWER TO THE APPLICANT ' S CLAIMS THAT IT WAS IMPOSSIBLE TO COUNT A PERIOD OF EMPLOYMENT AS A MEMBER OF THE AUXILIARY STAFF FOR THE PURPOSE OF RETIREMENT PENSION , AND WAS NOT FOLLOWED BY A COMPLAINT FROM THE APPLICANT UNTIL 20 JULY 1977 , THAT IS TO SAY TEN MONTHS AFTER THE LETTER FROM THE DIRECTORATE FOR PERSONNEL AND THUS OUT OF TIME , WHICH MAKES THE APPLICATION INADMISSIBLE ON THIS POINT .

20THE APPLICANT ALSO FAILED TO OBSERVE THE LIMITATION PERIOD LAID DOWN IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH IS THREE MONTHS AS FROM THE DATE OF EXPIRY OF THE PERIOD PRESCRIBED FOR REPLY ( NAMELY FOUR MONTHS FROM THE DATE ON WHICH THE REQUEST FOR A DECISION WAS MADE ) WHERE THE COMPLAINT CONCERNS AN IMPLIED DECISION OF REJECTION WITHIN THE MEANING OF ARTICLE 90 ( 1 ).

21BY A LETTER OF 13 AUGUST 1976 , THE APPLICANT REQUESTED THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION FOR HER PERIOD OF EMPLOYMENT AS AN EXPERT TO BE ASSIMILATED TO PERIODS OF PENSIONABLE SERVICE AS AN OFFICIAL OR A MEMBER OF THE TEMPORARY STAFF FOR THE PURPOSE OF HER RETIREMENT PENSION .

22THE COMPLAINT AGAINST THE IMPLIED REJECTION OF THIS REQUEST OF 13 AUGUST 1976 WAS NOT LODGED UNTIL 20 JULY 1977 , THEREFORE THE SUBSEQUENT APPEAL TO THE COURT OF JUSTICE MUST BE DECLARED INADMISSIBLE PURSUANT TO ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS .

23IT EMERGES FROM THE DOCUMENT INCLUDED IN THE CASE FILE THAT ALTHOUGH IN 1976 AND 1977 LETTERS PASSED BETWEEN THE ADMINISTRATIVE DEPARTMENTS OF THE DIRECTORATE FOR PERSONNEL AND THE APPLICANT CONCERNING HER PENSION RIGHTS IN RELATION TO HER PERIODS OF EMPLOYMENT AS AN EXPERT AND AS A MEMBER OF THE AUXILIARY STAFF , THEY WERE ONLY ACTS COMING WITHIN THE CATEGORY OF ADMINISTRATIVE INFORMATION , BECAUSE THEY DID NOT COME FROM AN APPOINTING AUTHORITY AS REQUIRED BY THE CONDITIONS OF EMPLOYMENT FOR ESTABLISHING A DECISION .

24THE FIRST ACT HAVING THE CHARACTER OF A DECISION WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS DATES FROM 30 JUNE 1977 , COMES FROM THE DIRECTOR OF PERSONNEL , AND REFUSES TO TAKE THE YEARS OF EMPLOYMENT AS AN EXPERT BY THE COMMISSION INTO ACCOUNT FOR THE CALCULATION OF PENSION RIGHTS ACQUIRED UNDER THE COMMUNITY SCHEME .

25THE APPLICANT BROUGHT A COMPLAINT AGAINST THIS ACT ADVERSELY AFFECTING HER BEFORE THE PRESIDENT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES ON 20 JULY 1977 PURSUANT TO AND WITHIN THE PERIOD PRESCRIBED BY ARTICLE 90 ( 2 ).

26THE APPEAL LODGED ON 17 FEBRUARY 1978 ON THIS ISSUE WAS THEREFORE NOT OUT OF TIME , SINCE IT OBSERVED THE PERIOD OF FOUR MONTHS PRESCRIBED BY ARTICLE 90 ( 2 ) WHERE A COMPLAINT RECEIVES NO REPLY AND IS THUS DEEMED TO BE REJECTED BY IMPLIED DECISION , ADDED TO THE PERIOD OF THREE MONTHS PRESCRIBED IN ARTICLE 91 FOR THE PURPOSE OF BRINGING THE CASE BEFORE THE COURT .

27THE SECOND ACT IN THE NATURE OF A DECISION , SIGNED BY A MEMBER OF THE COMMISSION AND DATED 15 FEBRUARY 1978 , STATES THAT THE APPLICANT ' S PERIODS OF MEMBERSHIP AS A MEMBER OF THE AUXILIARY STAFF GAVE HER PENSION RIGHTS UNDER BELGIAN LAW AND THEREFORE COULD NOT GIVE RISE TO COMMUNITY PENSION RIGHTS .

28THIS ACT , WHICH MOREOVER RESERVES THE QUESTION OF ANY RIGHTS ACQUIRED AS AN EXPERT , CONSTITUTES A FRESH DECISION , TAKEN BY AN AUTHORITY SUPERIOR TO THE ONE WHICH GAVE THE FIRST DECISION .

29SINCE IT DOES NOT MERELY CONFIRM THAT DECISION , IT REPLACES IT .

30THUS THE APPEAL LODGED ON THIS ISSUE ON 17 FEBRUARY 1978 WAS BROUGHT WITHIN THE PERIOD PRESCRIBED BY THE LAW .

31IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE APPEAL IS ADMISSIBLE .

SUBSTANCE OF THE CASE

32THE APPLICANT ACCUSES THE DEFENDANT OF HAVING UNLAWFULLY DESIGNATED THE AGREEMENT BETWEEN THEM AS CONTRACTS FOR THE EMPLOYMENT OF A MEMBER OF THE AUXILIARY STAFF .

33SHE MAINTAINS THAT SINCE SHE WAS ENGAGED TO OCCUPY FULL TIME AND IN A RELATIONSHIP OF SUBORDINATION A PERMANENT POST INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THE DEFENDANT WHEN THERE WAS NO QUESTION OF REPLACING AN OFFICIAL WHO WAS UNABLE FOR THE TIME BEING TO PERFORM HIS DUTIES , THOSE AGREEMENTS SHOULD HAVE BEEN RECOGNIZED AS HAVING THE CHARACTERISTICS OF A CONTRACT FOR THE EMPLOYMENT OF A MEMBER OF THE TEMPORARY STAFF .

34IT IS NECESSARY TO EXAMINE , ON THE ONE HAND , THE RESPECTIVE CHARACTERISTICS OF CONTRACTS FOR THE EMPLOYMENT OF AUXILIARY STAFF AND CONTRACTS FOR THE EMPLOYMENT OF TEMPORARY STAFF AND , ON THE OTHER , THE DUTIES PERFORMED BY THE APPLICANT AND THE CONDITIONS UNDER WHICH SHE CARRIED THEM OUT , AND TO DRAW THE APPROPRIATE CONCLUSIONS FROM THIS TWOFOLD EXAMINATION AS REGARDS HER ADMINISTRATIVE POSITION .

35ARTICLE 3 OF THE CONDITIONS OF EMPLOYMENT PROVIDES THAT ' ' AUXILIARY STAFF ' ' MEANS STAFF ENGAGED FOR THE PERFORMANCE OF DUTIES IN AN INSTITUTION BUT NOT ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THAT INSTITUTION , OR STAFF ENGAGED TO REPLACE AN OFFICIAL WHO IS UNABLE FOR THE TIME BEING TO PERFORM HIS DUTIES AND WHOSE POST COULD NOT BE FILLED BY TEMPORARY POSTING OF ANOTHER OFFICIAL .

36ARTICLE 52 PROVIDES THAT THE ACTUAL PERIOD OF EMPLOYMENT OF AUXILIARY STAFF SHALL NOT EXCEED THE PERIOD OF TEMPORARY ASSIGNMENT FOR THE PURPOSE OF REPLACING AN OFFICIAL OR A MEMBER OF THE TEMPORARY STAFF WHO IS UNABLE FOR THE TIME BEING TO PERFORM HIS DUTIES , OR ONE YEAR IN ALL OTHER CASES .

37THUS THE CHARACTERISTIC OF THIS CONTRACT IS ITS PRECARIOUSNESS IN TIME , SINCE IT CAN BE USED ONLY TO EFFECT A TEMPORARY REPLACEMENT OR TO ALLOW THE PERFORMANCE OF ADMINISTRATIVE DUTIES WHICH ARE OF A TRANSITORY NATURE WHICH FILL AN URGENT NEED OR WHICH ARE NOT CLEARLY DEFINED .

38SINCE THE PURPOSE OF THESE CONDITIONS OF EMPLOYMENT IS TO ARRANGE FOR OCCASIONAL STAFF TO PERFORM DUTIES WHICH - BY THEIR NATURE OR BY VIRTUE OF THE ABSENCE OF A HOLDER OF THE POST - ARE PRECARIOUS , IT IS CLEAR THAT THE SAID CONDITIONS OF EMPLOYMENT CANNOT BE WRONGFULLY USED TO ASSIGN SUCH STAFF TO PERMANENT DUTIES FOR LONG PERIODS , AND THUS EMPLOY THEM ABNORMALLY AT THE COST OF PROLONGED UNCERTAINTY .

39MOREOVER , OF THE FOUR KINDS OF TEMPORARY STAFF DEFINED IN ARTICLE 2 OF THE CONDITIONS OF EMPLOYMENT , THE ONE FOUND IN THE PRESENT CASE MUST BE REGARDED AS BEING THAT PROVIDED FOR IN ARTICLE 2 ( B ), ' ' STAFF ENGAGED TO FILL TEMPORARILY A PERMANENT POST INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO EACH INSTITUTION ' ' .

40THIS CONTRACT IS CHARACTERIZED BY THE ENGAGEMENT OF STAFF WHO ARE TO PERFORM WELL-DEFINED , PERMANENT , PUBLIC SERVICE DUTIES APPEARING IN THE ORGANIZATION PLAN OF A COMMUNITY INSTITUTION , THE POSTS OF SUCH STAFF BEING SHOWN IN A LIST OF POSTS .

41ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 8 AND FOR THE SAME REASONS AS THE CONTRACT FOR AUXILIARY STAFF , THIS CONTRACT IS FOR A PERIOD OF NOT MORE THAN TWO YEARS AND MAY BE RENEWED NOT MORE THAN ONCE FOR A MAXIMUM PERIOD OF ONE YEAR .

42AT THE END OF THAT TIME SUCH STAFF SHALL NO LONGER BE EMPLOYED AS TEMPORARY STAFF : EITHER THEIR EMPLOYMENT IS TERMINATED OR THEY ARE APPOINTED AS OFFICIALS .

43THE DIFFERENCE BETWEEN AUXILIARY STAFF AND TEMPORARY STAFF LIES IN THE FACT THAT A MEMBER OF THE TEMPORARY STAFF FILLS A PERMANENT POST INCLUDED IN THE LIST OF POSTS , WHEREAS , EXCEPT IN THE CASE OF TEMPORARY REPLACEMENT OF AN OFFICIAL , A MEMBER OF THE AUXILIARY STAFF PERFORMS ADMINISTRATIVE WORK WITHOUT BEING ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS .

44IT THEREFORE BECOMES NECESSARY TO LOOK INTO THE LEGAL DESIGNATION OF THE CONTRACTS BETWEEN THE APPLICANT AND THE DEFENDANT , HAVING REGARD TO THE DUTIES PERFORMED BY HER AND TO THE FACTS .

45HER DUTIES WERE DEFINED AS CONSISTING IN SETTING UP EUROPEAN DOCUMENTATION CENTRES IN UNIVERSITIES , ORGANIZING COMPETITIONS FOR COMMUNITY PRIZES , PUBLISHING THESES , AND ARRANGING INDIVIDUAL VISITS AND GROUP VISITS TO THE SEAT OF THE COMMUNITY .

46SHE TOOK THEM UP ON 1 JANUARY 1961 AND IS STILL PERFORMING THEM AT THE PRESENT TIME , 18 YEARS LATER ; IT CAN THEREFORE BE SAID THAT THEY ARE PERMANENT , DEFINITE , COMMUNITY PUBLIC SERVICE DUTIES .

47HER CONTRACT DESIGNATED AS BEING WITH A MEMBER OF THE AUXILIARY STAFF BEGAN ON 1 MARCH 1964 , BUT ON 24 JANUARY 1963 THE UNIVERSITY AND CULTURAL AFFAIRS DIVISION HAD BEEN ALLOCATED A POST OF PRINCIPAL ADMINISTRATOR A 5/A 4 , THE DEFINITION OF WHICH CORRESPONDED TO THE DUTIES PERFORMED BY THE APPLICANT AND THIS POST APPEARED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THAT INSTITUTION .

48AN OPEN COMPETITION PROCEDURE TO FILL IT WAS INITIATED BY A NOTICE PUBLISHED IN THE JOURNAL OFFICIEL OF 18 JANUARY 1965 .

49ALTHOUGH THE APPLICANT WAS PLACED FIRST ON THE LIST OF SUITABLE CANDIDATES DRAWN UP BY THE SELECTION BOARD FOLLOWING THE COMPETITION AND WAS PROPOSED FOR APPOINTMENT BY HER DIRECTOR GENERAL IN PARTICULARLY LAUDATORY TERMS REGARDING THE QUALITY OF HER WORK , HER EXPERIENCE , HER DEVOTION TO DUTY AND THE NEED TO REGULARIZE HER ADMINISTRATIVE SITUATION , ANOTHER CANDIDATE WAS CHOSEN AND WAS APPOINTED TO THAT POST .

50THIS OTHER CANDIDATE DID NOT FILL THE POST MENTIONED IN THE COMPETITION , AND THE DUTIES CORRESPONDING TO THE POST CONTINUED TO BE PERFORMED BY THE APPLICANT .

51THEREFORE IT APPEARS THAT AT ALL EVENTS AS FROM 1 MARCH 1964 , THE DATE OF HER FIRST CONTRACT AS A MEMBER OF THE AUXILIARY STAFF , THE AGREEMENT BETWEEN THE APPLICANT AND THE COMMISSION SHOULD HAVE TAKEN ON THE FORM OF A CONTRACT FOR THE EMPLOYMENT OF A MEMBER OF THE TEMPORARY STAFF , BECAUSE THE APPLICANT HAD BEEN ASSIGNED TO A PERMANENT POST APPEARING IN THE LIST OF POSTS APPENDED TO THE BUDGET .

52THE FORMAL NATURE OF THE VARIOUS CONTRACTS WHICH THE COMMISSION THEN OFFERED THE APPLICANT IN NO WAY ALTERS THE FACT THAT SHE PERFORMED THE SAME DUTIES UNTIL HER ESTABLISHMENT , WHICH WAS MERELY A REGULARIZATION OF HER OVER-LONG DE FACTO SITUATION AS A TEMPORARY OFFICIAL .

53THEREFORE THE CONTRACTS ENTERED INTO BY THE COMMISSION WITH THE APPLICANT SINCE 1 MARCH 1964 MUST BE REGARDED AS HAVING BEEN ENTERED INTO WITH A MEMBER OF THE TEMPORARY STAFF .

54THE DEFENDANT MUST ACT ACCORDINGLY IN CALCULATING THE APPLICANT ' S YEARS OF PENSIONABLE SERVICE IN RELATION TO HER PERIODS OF EMPLOYMENT UNDER THE INCORRECT DESIGNATION OF MEMBER OF THE AUXILIARY STAFF .

55AS REGARDS THE APPLICANT ' S COMPLAINT CONCERNING THE PENSION RIGHTS FOR THE PERIOD COVERED BY THE EXPERTS ' CONTRACTS , SINCE THE DEFENDANT STAYED THE PROCEEDINGS IN ORDER TO CARRY OUT A COMPREHENSIVE EXAMINATION OF THE QUESTION ON A GENERAL BASIS , AS APPEARS FROM THE THIRD PARAGRAPH OF THE LETTER OF 15 FEBRUARY 1978 FROM MR TUGENDHAT , THE MEMBER OF THE COMMISSION , IT RESTS WITH THE APPLICANT TO GIVE THE DEFENDANT NOTICE FOR HER COMPLAINT TO BE REJECTED BY EXPRESS DECISION OR BY IMPLIED DECISION ACCORDING TO ARTICLE 91 ( 2 ) AND THEREUPON TO TAKE SUCH STEPS AS SHE CONSIDERS APPROPRIATE .

Decision on costs

COSTS

56SINCE THE APPLICANT HAS BEEN SUCCESSFUL IN THE MAJOR PART OF HER SUBMISSIONS , THE COMMISSION MUST BE ORDERED TO BEAR ALL THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

HEREBY RULES :

1 . ALL CONTRACTS ENTERED INTO SINCE 1 MARCH 1964 BY THE COMMISSION WITH MRS F . DESHORMES MUST BE REGARDED AS HAVING BEEN ENTERED INTO WITH A MEMBER OF THE TEMPORARY STAFF .

2 . THE COMMISSION MUST ACT ACCORDINGLY IN CALCULATING THE YEARS OF PENSIONABLE SERVICE OF MRS F . DESHORMES .

3 . THE COMMISSION IS ORDERED TO BEAR THE COSTS OF THE ACTION .