1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 17 FEBRUARY 1981 , MR ETIENNE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION , PURSUANT TO ARTICLE 179 OF THE EEC TREATY , FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 18 NOVEMBER 1980 REJECTING HIS COMPLAINT OF 23 APRIL 1980 CONCERNING THE INTERPRETATION OF THE TERM ' ' GRADE ON ESTABLISHMENT ' ' WHICH APPEARS IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS .
2 THE APPLICANT WAS APPOINTED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , AT ITS MEETING ON 14 OCTOBER 1958 , TO PERFORM , IN THE DIRECTORATE-GENERAL FOR THE INTERNAL MARKET , THE DUTIES OF A MEMBER OF THE INDUSTRIAL AFFAIRS DIVISION . HE TOOK UP HIS DUTIES ON 26 OCTOBER 1958 . BY LETTER OF 3 DECEMBER 1958 , HE WAS INFORMED THAT THE COMMISSION HAD PLACED HIM IN GRADE A 6 , STEP 3 . IN THE SAME LETTER HIS ATTENTION WAS DRAWN ' ' TO THE FACT THAT AT THE PRESENT STAGE OF THE ORGANIZATION OF THE COMMUNITY , THIS ENGAGEMENT CAN BE ONLY PROVISIONAL IN NATURE . ' '
3 ON 12 APRIL 1960 , THE APPLICANT WAS APPOINTED DEPUTY CHEF DE CABINET TO A MEMBER OF THE COMMISSION , IN GRADE A 3 , STEP 1 AS FROM 1 MAY 1960 .
4 PURSUANT TO ARTICLE 102 OF THE STAFF REGULATIONS , WHICH ENTERED INTO FORCE ON 1 JANUARY 1962 , HE WAS APPOINTED , BY DECISION OF THE COMMISSION OF 14 DECEMBER 1962 , AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY AS FROM 1 JANUARY 1962 , ESTABLISHED IN GRADE A 3 , STEP 1 , AND ASSIGNED TO A POST IN THE COMMISSION ' S SECRETARIAT .
5 ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS PROVIDES THAT AN OFFICIAL WHO ENTERS THE SERVICE OF THE COMMUNITIES AFTER LEAVING THE SERVICE OF A GOVERNMENT ADMINISTRATION OR OF A NATIONAL OR INTERNATIONAL ORGANIZATION OR OF AN UNDERTAKING HAS THE RIGHT , ON BECOMING ESTABLISHED , TO PAY TO IT EITHER : THE ACTUARIAL EQUIVALENT OF RETIREMENT PENSION RIGHTS ACQUIRED BY HIM IN THE GOVERNMENT ADMINISTRATION , NATIONAL OR INTERNATIONAL ORGANIZATION OR UNDERTAKING ; OR THE SUMS REPAID TO HIM FROM THE PENSION FUND OF THE GOVERNMENT ADMINISTRATION , ORGANIZATION OR UNDERTAKING AT THE DATE OF HIS LEAVING ITS SERVICE . IN SUCH A CASE , THE INSTITUTION IN WHICH THE OFFICIAL SERVES MUST , TAKING INTO ACCOUNT HIS GRADE ON ESTABLISHMENT , DETERMINE THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH HE IS TO BE CREDITED UNDER ITS OWN PENSION SCHEME ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR SUMS REPAID .
6 BEFORE HE ENTERED THE SERVICE OF THE COMMISSION , THE APPLICANT WAS AFFILIATED TO THE CONTRIBUTORY PENSION SCHEME OF THE GRAND DUCHY OF LUXEMBOURG . THE TRANSFER OF PENSION RIGHTS ACQUIRED UNDER THAT SCHEME BECAME POSSIBLE ONLY AT THE BEGINNING OF 1980 .
7 IN JUNE 1980 , THE LUXEMBOURG CAISSE DE PENSION DES EMPLOYES PRIVES ( PENSION FUND FOR PRIVATE EMPLOYEES ) ( HEREINAFTER REFERRED TO AS ' ' THE LUXEMBOURG FUND ' ' ) AGREED TO TRANSFER TO THE COMMISSION THE SUM OF LFR 129 757 REPRESENTING THE CONTRIBUTIONS PAID BY THE APPLICANT IN RESPECT OF THE PERIOD FROM JUNE 1954 TO OCTOBER 1958 , TOGETHER WITH INTEREST .
8 HAVING REGARD TO THE APPLICANT ' S GRADE ON THE DATE OF HIS ESTABLISHMENT AND OF THE AMOUNT TRANSFERRED BY THE LUXEMBOURG FUND , THE COMMISSION CALCULATED IN APRIL 1980 THAT THE PERIOD OF PENSIONABLE SERVICE WITH WHICH HE WAS TO BE CREDITED AMOUNTED TO 10 MONTHS AND 29 DAYS .
9 BY LETTER OF 23 APRIL 1980 ADDRESSED TO THE COMMISSION ' S DIRECTORATE OF PERSONNEL , THE APPLICANT CHALLENGED THE COMMISSION ' S INTERPRETATION OF THE EXPRESSION ' ' GRADE ON ESTABLISHMENT ' ' USED IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS . HE CONTENDED PRIMARILY THAT THE CONCEPT OF ' ' GRADE ON ESTABLISHMENT ' ' , WITHIN THE MEANING OF ARTICLE 34 OF THE STAFF REGULATIONS , HAD NOT FORMALLY COME INTO EXISTENCE AT THE TIME OF HIS ENGAGEMENT AS AN OFFICIAL , THAT IS TO SAY , IN OCTOBER 1958 , AND DEDUCED FROM THIS THAT SINCE THE INTENTION BEHIND ARTICLE 34 OF THE STAFF REGULATIONS WAS THAT REFERENCE SHOULD BE MADE TO THE COMMENCEMENT OF THE CAREER , IT WAS NECESSARY TO TAKE THE DATE OF HIS ENGAGEMENT AND NOT THAT ON WHICH HE BECAME SUBJECT TO THE STAFF REGULATIONS , ADOPTED IN 1962 , FOR THE PURPOSE OF CALCULATING HIS RIGHTS .
10 SINCE THE COMMISSION REJECTED HIS REQUEST BY LETTER OF 18 NOVEMBER 1980 , THE APPLICANT BROUGHT THIS ACTION . HE MAINTAINS THAT HE WAS ENGAGED AS ' ' AN OFFICIAL ' ' AND NOT AS AN AUXILIARY , TEMPORARY OR OTHER SERVANT . THAT EMERGES FROM THE COMMISSION ' S LETTER OF 25 OCTOBER 1958 APPOINTING HIM TO PERFORM THE ' ' DUTIES ' ' OF A MEMBER OF THE INDUSTRIAL AFFAIRS DIVISION , FROM THE NOTICE OF 19 NOVEMBER 1958 CONCERNING THE TAKING UP OF HIS DUTIES AND FROM THE LETTER OF 3 DECEMBER 1958 PLACING HIM IN GRADE A 6 , STEP 3 . IN HIS OPINION , THE STATEMENT CONTAINED IN THE LETTER TO THE EFFECT THAT ' ' AT THE PRESENT STAGE OF THE ORGANIZATION OF THE COMMUNITY , THIS ENGAGEMENT CAN BE ONLY PROVISIONAL IN NATURE AND MAY BE TERMINATED BY EITHER PARTY AT ANY TIME BY ONE MONTH ' S NOTICE ' ' CONSTITUTES MERELY A FORMAL CLAUSE LINKED EXCLUSIVELY TO THE RIGHT OF DISMISSAL BUT UNRELATED TO THE OTHER CHARACTERISTICS OF THE PUBLIC SERVICE .
11 THE APPLICANT CEASED TO BE AFFILIATED IN ANY WAY TO THE SCHEME OF THE LUXEMBOURG FUND WHEN HE JOINED THE COMMUNITIES ' PENSION SCHEME IN OCTOBER 1958 . IT WOULD , IN HIS VIEW , BE ARBITRARY TO TAKE AS THE REFERENCE PERIOD FOR THE PURPOSE OF CALCULATING THE ACTUARIAL EQUIVALENT A CAREER LEVEL ATTAINED BY HIM MORE THAN THREE YEARS AFTER HE DISCONTINUED HIS AFFILIATION TO THE LUXEMBOURG FUND AND JOINED THE SCHEME OF THE COMMUNITIES . SUCH AN INTERPRETATION WOULD LEAD TO DISCRIMINATION BETWEEN OFFICIALS ESTABLISHED UNDER ARTICLE 102 OF THE STAFF REGULATIONS AND OFFICIALS NEWLY RECRUITED ON THE BASIS OF THOSE REGULATIONS .
12 FURTHERMORE , HE CONTENDS THAT THE COMMISSION ITSELF AGREED TO THAT INTERPRETATION IN A CERTIFICATE OF ESTABLISHMENT AND APPLICATION FOR THE TRANSFER OF CONTRIBUTIONS , DATED 7 MAY 1980 , ADDRESSED TO THE LUXEMBOURG FUND AND SPECIFYING THAT THE APPLICANT ' ' HAS BECOME ESTABLISHED AS AN INTERNATIONAL PUBLIC OFFICIAL WITH EFFECT FROM 1 OCTOBER 1958 AND HAS BEEN COVERED BY THE PENSION SCHEME FOR INTERNATIONAL PUBLIC OFFICIALS SINCE 1 OCTOBER 1958 . ' '
13 IN THE ALTERNATIVE , THE APPLICANT ARGUES THAT THE COMMISSION WAS PRECLUDED FROM REJECTING THE COMPLAINT ON 18 NOVEMBER 1980 AFTER THE APPLICANT ' S REQUEST OF 23 APRIL 1980 HAD EVOKED A FAVOURABLE RESPONSE , NAMELY THE ISSUE OF THE AFORESAID CERTIFICATE OF ESTABLISHMENT .
14 THE APPLICANT ' S ARGUMENT CANNOT BE ACCEPTED . ARTICLE 212 OF THE TREATY PROVIDED THAT THE COUNCIL WAS TO LAY DOWN THE STAFF REGULATIONS OF OFFICIALS , WHILST ARTICLE 246 ( 3 ) OF THE TREATY PROVIDES THAT ' ' UNTIL THE STAFF REGULATIONS OF OFFICIALS . . . HAVE BEEN LAID DOWN , EACH INSTITUTION SHALL RECRUIT THE STAFF IT NEEDS AND TO THIS END CONCLUDE CONTRACTS OF LIMITED DURATION . ' ' THE COURT HAS ON SEVERAL OCCASIONS REFUTED THE PROPOSITION THAT MEMBERS OF THE STAFF ENGAGED UNDER CONTRACT , EVEN FOR AN INDEFINITE PERIOD , MAY LEGITIMATELY EXPECT TO HAVE THE STAFF REGULATIONS APPLIED TO THEM IN RESPECT OF THE PERIOD PRECEDING THE ENTRY INTO FORCE OF THOSE REGULATIONS . MOREOVER , SUCH CONTRACTS COULD NOT GIVE RISE IN LAW TO AN INFERENCE THAT THERE WAS A COMMON INTENTION TO CREATE A PERMANENT EMPLOYMENT RELATIONSHIP , IN VIEW OF THE FACT THAT SUCH AN INTENTION WOULD HAVE BEEN MANIFESTLY CONTRARY TO THE PRINCIPLE CONTAINED IN ARTICLE 246 ( 3 ) OF THE TREATY .
15 ARTICLE 102 OF THE STAFF REGULATIONS CONTAINS THE PROVISIONS GOVERNING THE ESTABLISHMENT UNDER THE STAFF REGULATIONS OF SERVANTS OCCUPYING A PERMANENT POST WHEN THOSE REGULATIONS ENTERED INTO FORCE . IT STATES , IN PARTICULAR , THAT THERE MUST BE NO UNFAVOURABLE REPORT ON THE SERVANT BY THE ESTABLISHMENT BOARD , WHICH SHOWS THAT THE SERVANT ' S ESTABLISHMENT MAY NOT BE REGARDED AS AN INEVITABLE CONSEQUENCE OF HIS PREVIOUS ENGAGEMENT . ARTICLE 48 OF ANNEX VIII TO THE STAFF REGULATIONS CONTAINS PROVISIONS ENABLING AN OFFICIAL TO WHOM THE STAFF REGULATIONS ARE APPLIED PURSUANT TO THE TRANSITIONAL PROVISIONS TO ENJOY HIS PENSION RIGHTS ' ' COMPUTED FROM THE DATE OF HIS JOINING THE TEMPORARY JOINT PROVIDENCE SCHEME OF THE INSTITUTIONS OF THE COMMUNITIES . ' ' IT FOLLOWS FROM ALL THOSE PROVISIONS THAT AN OFFICIAL MAY NOT CLAIM TO HAVE BECOME ESTABLISHED BEFORE THE STAFF REGULATIONS ENTERED INTO FORCE .
16 WITH REGARD TO THE ALLEGED DISCRIMINATION IN RELATION TO A NEWLY RECRUITED OFFICIAL , IT MUST BE OBSERVED THAT THE TWO SITUATIONS ARE NOT COMPARABLE . AN OFFICIAL WHO BEGINS A PROBATIONARY PERIOD MAY NOT BE ESTABLISHED IN A GRADE CORRESPONDING TO A CAREER BRACKET WHICH IS HIGHER THAN THAT IN WHICH HE WAS RECRUITED WHEN HE BEGAN HIS PROBATIONARY PERIOD . ACCORDINGLY , IT CANNOT BE SAID THAT AN OFFICIAL RECRUITED UNDER THE SYSTEM EMBODIED IN THE STAFF REGULATIONS BENEFITS FROM A SITUATION COMPARABLE TO THAT OF THE APPLICANT WHO , FOLLOWING HIS ESTABLISHMENT IN GRADE A 3 , CLAIMS TO RELY , FOR CERTAIN PURPOSES , ON GRADE A 6 IN WHICH HE WAS PLACED MORE THAN THREE YEARS PRIOR TO HIS ESTABLISHMENT .
17 THE APPLICANT DEDUCES HIS FINAL ARGUMENT FROM THE FACT THAT A COMMISSION OFFICIAL , AFTER RECEIVING THE APPLICANT ' S LETTER OF 23 APRIL 1980 , DREW UP THE CERTIFICATE OF ESTABLISHMENT ADDRESSED TO THE LUXEMBOURG FUND AND THAT THE CERTIFICATE SPECIFIES 1 OCTOBER 1958 AS THE ' ' DATE OF ESTABLISHMENT . ' ' CONSEQUENTLY , THE COMMISSION ACCEPTED BY IMPLICATION THE ARGUMENT PUT FORWARD BY THE APPLICANT AND IS THUS NO LONGER IN A POSITION TO CHALLENGE ITS VALIDITY .
18 THAT ARGUMENT IS UNTENABLE . IT IS TO BE OBSERVED THAT THE CERTIFICATE IN QUESTION WAS MADE OUT ON A FORM DRAWN UP IN ADVANCE BY THE LUXEMBOURG FUND ON THE BASIS OF THE LAW OF 14 MARCH 1979 AND , IN PARTICULAR , OF ARTICLE 7 THEREOF . THE SCOPE OF THE TERM ' ' ESTABLISHMENT ' ' CONTAINED IN THAT LAW DIFFERS FROM THE SCOPE OF THE SAME TERM AS USED IN THE STAFF REGULATIONS . IT APPLIES NOT ONLY TO OFFICIALS OF THE EUROPEAN COMMUNITIES ESTABLISHED WITHIN THE MEANING OF THE STAFF REGULATIONS BUT ALSO TO OFFICIALS OF INTERNATIONAL ORGANIZATIONS WHERE THE CONCEPT OF ESTABLISHED OFFICIALS IS UNKNOWN . THE APPLICANT IS THEREFORE MISTAKEN IN DRAWING FROM THE USE OF THE WORD ' ' ESTABLISHMENT ' ' IN THAT CERTIFICATE THE CONCLUSION THAT THE COMMISSION , BY VIRTUE OF THAT FACT ALONE , RECOGNIZED HIS ESTABLISHMENT WITHIN THE MEANING OF THE STAFF REGULATIONS AS FROM OCTOBER 1958 . FURTHERMORE , THE COMMISSION HAS STATED IN THE COURSE OF THE ORAL PROCEEDINGS THAT THE COMMISSION OFFICIAL WHO COMPLETED THAT FORM GAVE THE APPLICANT TO UNDERSTAND , BOTH BEFORE AND AFTER ITS COMPLETION , THAT HE CONSIDERED THE APPLICANT ' S ARGUMENT , ACCORDING TO WHICH HE BECAME ESTABLISHED WITHIN THE MEANING OF THE STAFF REGULATIONS BEFORE THEY ENTERED INTO FORCE , TO BE MISTAKEN . IT FOLLOWS THAT THE APPLICANT HIMSELF KNEW THAT THE CERTIFICATE DID NOT HAVE THE SCOPE WHICH HE NOW ATTRIBUTES TO IT BEFORE THE COURT .
19 IT IS APPARENT FROM AN EXAMINATION OF THE ARGUMENTS PUT FORWARD BY THE APPLICANT THAT THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .