1 . JURISDICTION THE COURT HAS JURISDICTION TO HEAR THE PRESENT CASE . THE JURISDICTION OF THE COURT IS BASED ON ARTICLE 42 OF THE TREATY, RELIED ON BY THE APPLICANT IN HIS APPLICATION, TOGETHER WITH ARTICLE 17 OF THE CONTRACT OF EMPLOYMENT AND ARTICLE 27 OF THE INTERNAL STAFF RULES OF THE COMMON ASSEMBLY OF 12 JANUARY 1953 . ARTICLE 17 OF THE CONTRACT OF EMPLOYMENT PROVIDES THAT ALL THE CLAUSES OF THE INTERNAL RULES IN FORCE ARE APPLICABLE TO THE RELATIONSHIP BETWEEN THE SERVANT AND THE COMMON ASSEMBLY IN SO FAR AS THEY ARE NOT CONTRARY TO THE PROVISIONS OF THE CONTRACT OF EMPLOYMENT . ARTICLE 27 OF THE INTERNAL STAFF RULES PROVIDES THAT ANY DISPUTE OF AN INDIVIDUAL CHARACTER TO WHICH THE APPLICATION OF THE RULES OR THE PERFORMANCE OF CONTRACTS OF EMPLOYMENT MAY GIVE RISE SHALL BE BROUGHT BEFORE THE COURT OF JUSTICE . ARTICLE 50 OF THE PROVISIONAL STAFF RULES OF 1 JULY 1953 CONTAINS AN ANALOGOUS PROVISION . THE COURT ALSO FINDS THAT THE ARGUMENT WITH WHICH THE ADVOCATE GENERAL SUPPORTED HIS OPINION, BASED ON THE GENERAL PRINCIPLE OF LIABILITY LAID DOWN BY ARTICLE 40 OF THE TREATY, IS WELL FOUNDED . THAT ARTICLE WAS ALSO RELIED ON BY COUNSEL FOR THE APPLICANT DURING THE ORAL PROCEDURE . THE COURT NOTES THAT THE DEFENDANT HAS NOT RAISED ANY OBJECTION OF INADMISSIBILITY . THE COURT RULES THAT THE PRESENT APPLICATION IS ADMISSIBLE .
2 . SUBSTANCE AT ITS MEETING ON 15 JUNE 1953, THE BUREAU OF THE COMMON ASSEMBLY DECIDED " TO ABOLISH THE POST OF HEAD OF ADMINISTRATIVE SERVICES UPON THE EXPIRY OF THE CONTRACT OF THE PRESENT INCUMBENT, MR KERGALL ( 5 DECEMBER 1954 ) " ( SEE THE MINUTES OF THE MEETING ). THAT DECISION TO ABOLISH THE SAID POST DID NOT, AT THAT MOMENT, EXPRESSLY INVOLVE THE NON-RENEWAL OF THE APPLICANT'S CONTRACT OF EMPLOYMENT . ON 16 JUNE 1953, THE SECRETARY GENERAL OF THE COMMON ASSEMBLY WROTE TO THE APPLICANT : " I REGRET TO INFORM YOU THAT THE BUREAU, AT ITS MEETING ON 15 JUNE, DECIDED TO ABOLISH THE POST WHICH YOU OCCUPY WITHIN THE SECRETARIAT OF THE COMMON ASSEMBLY . ACCORDINGLY, IT WILL NOT BE POSSIBLE FOR ME TO RENEW YOUR CONTRACT ". AT A NUMBER OF MEETINGS HELD BY THE BUREAU OF THE COMMON ASSEMBLY ON 3 AND 27 OCTOBER AND 29 NOVEMBER 1954, THE LATTER CONFIRMED THE DECISION NOT TO RENEW TAKEN BY THE SECRETARY GENERAL, AND REFUSED TO GRANT THE APPLICANT AN EXTENSION OF HIS CONTRACT AS REQUESTED BY HIM . WITHOUT CLAIMING THAT THE DECISION NOT TO RENEW HIS CONTRACT SHOULD BE ANNULLED, THE APPLICANT CLAIMS THAT THE COURT SHOULD RULE THAT THE SAID DECISION WAS ADOPTED IN IRREGULAR CIRCUMSTANCES AND THAT IT SHOULD THEREFORE RULE THAT THE SAID MEASURE HAS CAUSED HIM INJURY, AND THAT THIS SHOULD BE MADE GOOD . P . 156 A - ON THE REGULARITY OF THE DECISIONS OF THE DEFENDANT NOT TO RENEW THE APPLICANT'S CONTRACT OF EMPLOYMENT ( A ) THE COURT IS OF THE OPINION THAT ALTHOUGH THE CONTRACT OF EMPLOYMENT ENTERED INTO ON 10 JANUARY 1953 BETWEEN THE COMMON ASSEMBLY AND THE APPLICANT IS ON THE FACT OF IT MERELY A CONTRACT OF EMPLOYMENT FOR A LIMITED PERIOD, IT NEVERTHELESS CONSTITUTES A CONTRACT SUI GENERIS . THAT CONTRACT MUST BE INTERPRETED NOT ONLY IN THE LIGHT OF THE PROVISIONS OF THE TREATY AND OF THE INTERNAL RULES IN FORCE TO WHICH IT REFERS, BUT ALSO WITH REGARD TO WHAT WAS CONTEMPLATED BY THE PARTIES AND TO THE INTENTIONS OF THE COMMUNITY IN RESPECT OF ITS SERVANTS . 1 . THE PREAMBLE TO THE SAID CONTRACT OF EMPLOYMENT REFERS TO THE THIRD PARAGRAPH OF ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS, WHICH 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 ". THE REFERENCE TO THAT PROVISION CLEARLY ESTABLISHES THE FACT THAT THE CONTRACT OF EMPLOYMENT WAS THE PRECURSOR OF THE STAFF REGULATIONS . 2 . ARTICLES 1 AND 2 OF THE CONTRACT OF EMPLOYMENT PROVIDE THAT " MR KERGALL SHALL ENTER THE SERVICE OF THE COMMON ASSEMBLY . THIS CONTRACT SHALL TAKE EFFECT ON 6 DECEMBER 1952 AND IS VALID FOR TWO YEARS ". THE WORDS " ENTER THE SERVICE " AND THE FACT THAT THE APPLICANT WAS ENGAGED AS A SERVANT IN THE FIRST GRADE - WHICH INCLUDED THE SECRETARY GENERAL, THE ASSISTANT SECRETARY GENERAL, THE HEADS OF SERVICE AND PERSONS HOLDING SIMILAR POSTS - INDICATE, OR IN ANY EVENT, CONSTITUTE REASONABLE GROUNDS FOR TAKING THE VIEW THAT WHAT WAS INVOLVED HERE CAN ONLY HAVE BEEN THE APPLICANT'S ENGAGEMENT AS AN OFFICIAL WHO WAS ELIGIBLE, SUBJECT TO CERTAIN CONDITIONS, FOR STABILITY OF EMPLOYMENT, THAT IS TO SAY FOR ESTABLISHMENT UNDER THE STAFF REGULATIONS .
3 . THE GRANT PROVIDED FOR BY ARTICLE 15 OF THE APPLICANT'S CONTRACT OF EMPLOYMENT THE COURT FINDS THAT ARTICLE 15 OF THE APPLICANT'S CONTRACT OF EMPLOYMENT FIXED THE MINIMUM AMOUNT OF THIS GRANT, THUS GIVING THE BUREAU OF THE COMMON ASSEMBLY THE POWER TO ESTABLISH THE AMOUNT IN EACH CASE . IN EXERCISE OF THAT POWER, THE SAID BUREAU FIXED THE GRANT DUE TO THE APPLICANT AT SIX MONTHS' REMUNERATION . BY A DECISION OF THE BUREAU OF THE COMMON ASSEMBLY OF 3 DECEMBER 1954, THAT GRANT WAS REDUCED TO TWO MONTHS' REMUNERATION . IN JUSTIFICATION OF THAT MEASURE IT HAS BEEN ALLEGED THAT THE APPLICANT DID NOT ACCEPT THE ADDITIONAL FOUR MONTHS' REMUNERATION AND THAT HE HAD SHOWN EVIDENCE OF HIS INTENTION TO BRING AN APPLICATION BEFORE THE COURT OF JUSTICE . P . 160 IT IS THE COURT'S VIEW, IN AGREEMENT ON THIS POINT WITH THE OPINION OF THE ADVOCATE GENERAL, THAT IT DOES NOT APPEAR FROM THE DOCUMENTS THAT THE APPLICANT REFUSED THAT GRANT, AND THAT THE FACT THAT HE INTENDED TO BRING A CASE BEFORE THE COURT IS NOT A VALID REASON FOR ALTERING THE DECISION OF THE BUREAU OF THE COMMON ASSEMBLY TO THE APPLICANT'S DISADVANTAGE, AS HAS HAPPENED IN THE PRESENT CASE . THE COURT CONCLUDES THAT THE APPLICANT'S CLAIM FOR PAYMENT OF THE FOUR ADDITIONAL MONTHS' REMUNERATION WHICH HAD BEEN GRANTED BY THE BUREAU OF THE COMMON ASSEMBLY IS WELL FOUNDED . FURTHERMORE, THE COURT FINDS THAT THE BUREAU OF THE COMMON ASSEMBLY FIXED THE AMOUNT OF THE SAID GRANT AT FOUR-TWELFTHS OF HIS REMUNERATION IN ADDITION TO THE TWO-TWELFTHS LAID DOWN BY ARTICLE 15 OF THE CONTRACT AS A MINIMUM, BY TAKING INTO ACCOUNT THE FOLLOWING FACTORS : ( A ) THE MATERIAL DIFFICULTIES WHICH THE PERSON CONCERNED WOULD HAVE TO FACE AS THE HEAD OF A LARGE FAMILY AFTER LEAVING THE SERVICE OF THE COMMON ASSEMBLY; ( B ) THE EXPENSES THAT HE WOULD HAVE TO MEET IN LOOKING FOR A NEW POST . THOSE FACTORS ARE, WITHOUT DOUBT, VERY IMPORTANT, BUT A FAIR ASSESSMENT OF THE CONSEQUENCES WHICH THEY INVOLVE SHOWS THAT THE SIX MONTHS' REMUNERATION GRANTED IS NOT SUFFICIENT COMPENSATION FOR THE DIFFICULTIES AND EXPENSES TO WHICH THE APPLICANT IS EXPOSED . MOREOVER, THEY ARE NOT THE ONLY FACTORS INVOLVED IN THE SITUATION . THERE ARE OTHERS, WHICH MUST ALSO BE TAKEN INTO CONSIDERATION . THE BUREAU OF THE COMMON ASSEMBLY WAS AWARE OF THE DRAFTS OF THE STAFF REGULATIONS DRAWN UP BY THE COMMITTEE OF PRESIDENTS . THOSE DRAFTS MADE PROVISION, IN ACCORDANCE WITH THE PRINCIPLES GENERALLY ACCEPTED IN ADMINISTRATIVE LAW, FOR A SERVANT TO BE ASSIGNED NON-ACTIVE STATUS . THE COURT IS OF THE OPINION THAT THE BUREAU OF THE COMMON ASSEMBLY OUGHT TO HAVE TAKEN ALL THOSE FACTORS INTO ACCOUNT AND, HAVING REGARD TO THOSE DRAFTS, TO HAVE GRANTED AN ANALOGOUS PAYMENT TO THE APPLICANT . NO SUCH PAYMENT HAVING BEEN GRANTED, TAKING INTO CONSIDERATION THE CIRCUMSTANCES OF THE PRESENT CASE AND HAVING REGARD TO THE IRREGULARITY OF THE DECISIONS TAKEN BY THE DEFENDANT, THE COURT RULES THAT THE APPLICANT IS ENTITLED TO PAYMENT, BY THE DEFENDANT, OF AN AMOUNT EQUAL TO ONE YEAR'S REMUNERATION . THAT PAYMENT IS TO BE ADDED TO THE PAYMENT OF TWO-TWELFTHS ALREADY PAID AND TO THE FOUR-TWELFTHS WRONGLY WITHHELD BY THE BUREAU, SUCH THAT THE ORDER IS FOR PAYMENT OF A SUM EQUAL TO SIXTEEN MONTHS' REMUNERATION .