OPINION OF MR ADVOCATE-GENERAL LAGRANGE

DELIVERED ON 28 JANUARY 1964 (*1)

Mr President,

Members of the Court,

I — Facts and conclusions of the application

Mrs Wollast, nee Schmitz, a welfare officer in Luxembourg, was engaged by the Commission of the EEC as a nurse by a letter of 28 July 1959, the conditions of which were accepted by her on 30 July. She was engaged on the basis of a contract for auxiliary staff for an indefinite period and terminable on a monthly basis.

On 13 April 1962 she was offered a contract as a member of the auxiliary staff for the period from 1 January to 31 July 1962 with the right to terminate ‘for causes and circumstances envisaged by Articles 74 to 77 of the Conditions of Employment of Other Servants of the Community’. This clause referred to the second part of the scheme set up by Regulation No 31 ‘laying down the Staff Regulations of officials and the Conditions of Employment of Other Servants of the Community’ which was applicable from 1 January 1962 and which, as you know, was only published in the Official Journal of the European Communities on 14 June 1962 but which was already known and widely distributed throughout Community ‘circles’. This contract classed the applicant as being in Category C, group VI, class 4.

Mrs Wollast signed this contract but she did make a reservation as to her classification. However, the Administration made it known to her that it could not accept this reservation which it considered as ‘null and void’. On 22 August 1962 the contract was extended to 31 October 1962 and, on the following 20 November, it was extended to 31 December of the same year.

I would note here that this substitution of a whole series of very short contracts for a definite period for an old contract for an indefinite period was due not to the desire of the Administration to make the applicant's position more precarious but on the contrary to its intention of making it possible to integrate her together with another nurse engaged on the same conditions in one of the two posts provided for in the budget and which were subsequently set up. This can be seen most clearly from the two notes of the Head of the Administration and Personnel Division dated 3 August and 12 November 1962 (documents 24 and 25 annexed to the rejoinder).

In fact the two vacancies were published on 19 September 1962. On 4 October the applicant presented her application but this was returned to her as premature. In fact, as you know, before recruitment by competition (internal, then, failing that, external) there must be an examination of the possibilities of filling the vacancy by transfer or promotion; these possibilities were apparently theoretical in this case but the administration must observe the Regulations.

However on 15 November 1962 a note from the Personnel Department (document 26 annexed to the rejoinder) pointed out that it did not appear ‘opportune to extend without comment Mrs Wollast's contract to 31 December 1962’ and that it was necessary ‘to draw her attention to the fact that, even though her engagement is extended, this extension in no way affects the decision which will be taken at the end of the enquiry at present being made with regard to her’. This change of attitude could only have been caused by new circumstances, namely the incident which occurred on 29 October in Avenue de la Joyeuse-Entrée; in fact the letter of 20 November extending her contract and containing the comment suggested by the note from the Personnel Department of 15 November makes specific reference to this incident.

On 21 December her engagement was extended to 31 January 1963 but the letter added: At the same time I would point out to you that your duties as a nurse will cease as from 1 January 1963. ‘I would also draw your attention to the fact that the present extension of your engagement does not in any way exclude a subsequent extension’.

Having understood very well the meaning of these observations, the applicant wrote on 8 January 1963 to Mr Hallstein, President of the Commission, and to Lambert Schaus, one of the members of the same body, to explain her conduct at the incident which occurred on 29 October. When the contract was not extended after 31 January, as one could have expected, on 20 February 1963 she sent by registered letter with a request for an acknowledgment of receipt a request to the Director-general of Administration that the integration procedure provided for by Article 102 of the Staff Regulations of officials be applied to her.

On 1 March 1963 that senior official rejected this request for the reason, he said, that Article 102 ‘is to be applied specifically to servants occupying a permanent post and not to auxiliary staff who, like yourself, have been engaged on the basis of a contract of limited duration, which, moreover, as it was not extended, expired on 31 January 1963’.

It is this decision which Mrs Wollast is attacking in the first head of her conclusions, claiming that in spite of her contract as a member of the auxiliary staff she held a permanent post on 1 January 1962. Under the second head of her conclusions she asks the Court to ‘declare null and void’ what she calls ‘the decision to terminate the contract notified to the applicant with provisional effect by a letter of 21 December 1962 and confirmed as definitive by letter of 1 March 1963’ (which she has already attacked in the first head of the submissions) and, consequently, to ‘declare that she must still be regarded as being in the service of the Community under the terms and conditions of the contract of employment of 13 April 1962 for an indefinite period’ and she must be accorded the corresponding arrears of salary. Alternatively, in the event of the Court's considering the contract to be no longer in force, she asks for the award of damages for wrongful termination of the contract. These damages she assesses at 3000000 FB (which is increased to 5000000 FB in the reply), plus 1000000 FB for ‘non-material damage’. Finally, in any case she asks the Court to ‘annul the veiled and illegal penalty in the letter of 21 December 1962 addressed to the applicant which prohibits her from carrying out her duties during January 1963’. These are, essentially at least, the conclusions in the application to which there must be added the ‘minor additional’ conclusions drawn up in the reply and directed at obtaining the production of numerous documents. I would point out on this last point, and so as not to return to this question, that some of these documents have been produced in the annex to the rejoinder and, in addition, this Chamber of the Court has refrained up to now from ordering the production of the others. In my opinion the file is sufficiently complete to allow all the points of law and of fact raised in this dispute to be settled.

II — Discussion

A — First head of the conclusions

As can be recalled, these are directed against the letter of the Director-general of Administration of 1 March 1963 rejecting the applicant's request to be integrated according to the procedure prescribed by Article 102 of the Staff Regulations.

According to the Commission these conclusions are inadmissible for two reasons: 1. Because her contract was not renewed the applicant's duties terminated on 1 February 1963. Thus she was no longer a member of the Commission's staff and could not have recourse to the complaint procedure set up exclusively in favour of the staff and, for the same reason, the Administration could no longer take measures with regard to her based on the Staff Regulations. This seems to mean that the letter of 1 March 1963 cannot be regarded as a decision adversely affecting the applicant. 2. The real decision establishing the refusal to apply the integration procedure to the applicant is contained in the creation of two posts for nurses and the publication of the corresponding notices of vacancy on 19 September 1962. The applicant did not appeal against this decision within the period prescribed by law and even presented her application for one of these posts.

in my opinion, these pleas of inadmissibility must be dismissed.

On the first point, Article 73 of the ‘Conditions of Employment of Other Servants’ which is part of Title III relating to auxiliary staff provides that ‘Title VII of the Staff Regulations, concerning appeals, shall apply by analogy’. Article 90 of the Staff Regulations which forms part of Title VII provides that ‘Any official may submit a request or complaint to the appointing authority of his institution’. It is obvious that the application of this provision cannot be ruled out in the case where the complaint is concerned precisely with the regularity of the exclusion of an official from the staff; ‘by analogy’ it is the same for a member of the auxiliary staff whose contract has not been renewed but who claims still to have the right to the application of the Staff Regulations. In other words the request or complaint procedure through an immediate superior as laid down in Article 90 has a general scope and may be used as a preliminary procedure in all cases where the procedure before the Court could be invoked. For the same reason the letter of 1 March 1963 rejecting the complaint is in the nature of a decision adversely affecting the applicant and a ground of appeal to the Court of Justice.

On the second point the Commission's reasoning rests in reality on an alleged acquiescence of the applicant based on the fact that by failing to protest within the necessary time against the creation of the two permanent posts for nurses and by offering herself as a candidate for one of them she recognized by implication that she could not claim to be integrated in a ‘permanent post’ which she was already occupying, as there would otherwise be a contradiction.

The acquiescence of a public servant resulting from his conduct in relation to measures of the administration is to be accepted only with greatest caution, if it is to be accepted at all. In fact administrative measures have as a rule a unilateral character and one must comply with them. The mere fact of not attempting to bring a complaint or an appeal with regard to such measures does not in itself involve (except — perhaps — in very special circumstances) renunciation of the rights which the person concerned holds under the law or the Regulation, or his contract if the dispute is concerned with a servant employed on the basis of a contract. It seems that the case law of this Court supports this argument (Mirossevich, Case 10/55, Rec. 1955-1956, p. 384). In this case it can easily be understood, as learned counsel for the applicant rightly points out, that the applicant first sought her integration by the means which the Administration offered to her before becoming involved in a legal discussion on the application of Article 102 to auxiliary staff when she knew very well that she would come up against a firm position of principle on the part of the Commission. On the other hand it is difficult to see what ‘loss of rights’ she can be said to have incurred by the fact that only in February 1963 did she assert the rights which she claimed to have under Article 102, when, at that time, the integration procedure was still in operation. Finally, according to Article 102, any rights which she possesses in this respect must be assessed as on 1 January 1962, at which time she was still in the service of the Commission.

In spite of the fact that the conclusions in the application under this first head thus appear to me to be admissible, I do not consider them to be well founded.

There is here an important question of principle relating to the interpretation of Article 102 of the Staff Regulations of officials. What is to be understood by the expression ‘a servant who is occupying a permanent post in one of the institutions of the Communities when these Staff Regulations enter into force’ ?

The difficulty arises from the fact that the concept of a ‘permanent post’ is closely related to that of an established official, as can be deduced from Article 1 of the Regulations by which it is the ‘appointment to a permanent post’ which confers on him the status of official. On 1 January 1962 no servant of the Communities held a permanent post as an established official, apart from the officials of the ECSC who, in their case, had no need to be ‘established’ since they already were established and since their rights are preserved under Article 93 and Annex X to the Staff Regulations of the ECSC. For the servants of the other two Communities the ‘appointment to a permanent post’ which confers the status of official was inconceivable precisely because there were no Staff Regulations.

Thus two interpretations are possible. The first, which is that advanced in the application, maintains that it is necessary to refer not to the legal position of the servant but to the nature of the post ‘occupied’ by him. According to this argument it matters little that the servant had been engaged as a member of the auxiliary staff or on the basis of a so-called ‘Brussels contract’ or in any other capacity. One must enquire merely whether the duties entrusted to him were in fact of a permanent nature with the result that integration under Article 102 did no other than confirm in a sense the permanence of the post.

The other argument, which is supported by the Commission, is based, on the contrary, on the legal nature of the contractual relationship between the servant and his Administration and on the concept of ‘post’ as understood in the budget. According to this conception, ‘permanent post’ is one regularly set up by the budgetary authority and a servant ‘occupying a permanent post’ is the person assigned to such post. In practice only the servants engaged on the basis of a ‘Brussels contract’ were capable of satisfying this condition; the others and especially the auxiliary staff could not meet such a condition for in no case was it possible to consider them as ‘occupying a permanent post’, nor even as ‘occupying’ any post, whatever in fact was the degree of permanence which the duties entrusted to them tended to acquire or even in reality had acquired. In support of the first hypothesis one can adduce substantial arguments — which the applicant does not fail to do. First of all, in law, the absence of any legal difference between the different kinds of contracts especially between the ‘Brussels contract’ and the contract for auxiliary staff as regards the security of the servant. As this Court has recognized on several occasions, following on this matter the ideas developed by my colleague Mr Roemer in his opinion, the holder of a Brussels contract was not simply in a situation in which the Staff Regulations were awaited — a situation similar to that recognized by the Kergall judgment with regard to servants of the ECSC — but was legally in a far more precarious position imposed on him by the wording of Article 246 (3) of the EEC Treaty. Moreover the applicant reminds us that a great number of the ‘permanent’ tasks falling on the Administration of the Commission are entrusted to auxiliary staff certain of whom have had those duties for several years and still do (although, according to Article 52 of the Conditions of Employment of Other Servants, the duration of the contract of a member of the auxiliary staff cannot exceed one year). It appears that this has caused the problem of what is called ‘false auxiliary staff’. Thus, according to the applicant, it would be completely arbitrary to base the right to the application of Article 102 on the nature of the contract of employment, in other words on a purely legal criterion which does not correspond with reality, or does so only by chance.

I consider, however, that it is the Commission's point of view which is legally correct.

In fact the argument put forward by the applicant in her appeal ignores the fundamental distinction which exists between the permanence of the post and the permanent needs of the service. It is perfectly true that in a rational organization of the public service the posts corresponding to permanent needs must in principle be occupied by established officials, properly appointed to those posts, whereas tasks which do not correspond to such needs are normally entrusted to auxiliary staff paid by allocations granted on an aggregate basis by the budget for this purpose. But it is always difficult, especially for a new administration to determine precisely and in advance the number and the allocation of the posts necessary to provide for the permanent needs of that administration. A certain flexibility is indispensable and only by experience can one be sure after a certain time that various duties really have the character of permanence or that in a certain service a minimum of x number of posts really meets the permanent needs of that service. In the meantime wisdom demands that to a large extent one should call on auxiliary staff, for, once the posts have been created and filled by established officials, it is very difficult to go back on one's decision and to cut down in staff.

Of course one must also take account of the need to obtain the agreement of the budgetary authority which is concerned with economy and which is naturally disposed to reduce to a minimum the assessment made by the administration of its needs. It follows from this that by reason either of the prudence of the administration concerned or of the unduly restrictive nature of the control of the budgetary authority, or of a combination of the two, the number of posts necessary to provide for the permanent needs of the administration may not be created. The result is that to ensure the running of departments one must thus continue to call on auxiliary staff. This is a well-known situation in national administration and if it is developed and continued can prove to be full of drawbacks, and it is without doubt in order to avoid this that Article 52 of the Conditions of Employment of Other Servants, to which I have already referred, thus limits to one year the maximum duration of contracts for auxiliary staff. But what is certain is that before the creation of posts by the budget which permits the appointment of established officials, amongst whom perhaps there will be auxiliary staff who in fact carry out the duties for which the posts are created, there can be no question of‘occupying a permanent post’ which in theory does not exist.

It therefore follows that Article 102 can only be applied to the extent that ‘permanent posts’, in other words posts created by the budget, existed before the entry into force of the Staff Regulations. Such a situation existed in this case. The truth is that, as the Court had the opportunity to find in the Maudet case, the Commission of the EEC was led little by little, during this long period of preparation of the Staff Regulations, to organize its administration according to the rules which began to resemble more and more closely the definitive scheme which the Regulations were to be called on to confirm and closely to base its own rules on those of the ECSC scheme. The distinction between servants engaged on the basis of a ‘Brussels contract’ and the others, especially auxiliary staff, corresponded closely to the distinction between servants ‘occupying a permanent post’ which appears in the budget for the particular body, and those who did not occupy such a post. For the first category the condition in Article 1 of the Staff Regulations was met in law, and it sufficed to ensure that the servant himself was ‘worthy’ of being appointed on a permanent basis together with other guarantees inherent in the status of official as prescribed by the integration procedure in Article 102. On the other hand the second category must wait for a post to be vacated before they can possibly be appointed in accordance with the conditions prescribed by the Staff Regulations.

That is in my opinion the only reasonable interpretation of Article 102. The other argument, based on the nature of the duties in fact carried out by the servant on 1 January 1962, not only appears to me to be inconsistent with the principles and the wording of the provision and even the intentions of the authors of the Staff Regulations but inevitably involves endless discussion and countless disputes on the ‘permanent’ character which a certain duty carried out by a certain servant on 1 January 1962 presented. That is absolutely incompatible with the quasi-automatic nature which the integration procedure as prescribed by Article 102 must present, and, in addition, would risk involving a grave conflict with the budgetary authorities of the Community in a case in which they refuse to accept the automatic creation of all the posts provided in the budget necessary for establishing auxiliary staff who were recognized as ‘occupying a permanent post’ by the mere fact that the exercise of their duties had been judged in each particular case as corresponding to permanent needs.

B — The second head of the conclusions

Here the principal argument of the applicant consists in maintaining that she was in reality the holder of a contract for an indefinite period and it follows from this that the non-renewal of this contract, in the way in which it was decided, is equivalent to a termination which, being irregular and wrongful, must lead to the reinstatement of the contract or, alternatively, to damages. In support of this argument the applicant cites doctrine and case law, both national and international, on contracts which are indefinitely renewable and comparable to contracts for an indefinite period.

In this case it is true that the first contract as a member of the auxiliary staff of 28 July 1959, terminable on a monthly basis and tacitly extended in the absence of termination, was a contract for an indefinite period. But the position is different as regards the contracts concluded under the ‘Conditions of Employment of Other Servants’: the contract of 13 April 1962 whose date of expiry was fixed for 31 July 1962, as well as its three extensions whose dates of expiry were respectively 31 October 1962, 31 December 1962 and 31 January 1963. The duration of each of these contracts had been exactly ‘fixed’ each time and even in the short term.

However I do not think that the Court can restrict itself to finding, as the Commission asks, that the contract has expired and the administration, in the mere exercise of its discretionary power, has not renewed the contract. The Court is here judging the contract in accordance with the combined provisions of Article 73 of the ‘Conditions of Employment of Other Servants’ and Article 91 of the Staff Regulations and it is up to it to deduce the common intention of the parties, taking account of all the factual circumstances. In this respect, as I have already pointed out in my account of facts, it appears in the most clear and certain manner from that account (and without in any way taking into consideration the promises which were made to the applicant) that the first extension up to 31 October 1962 was decided on solely with the object of waiting for the time when it would be possible to ‘regularize the position’ of the two nurses, in other words to appoint them to the two posts whose creation was envisaged after the organization of an internal competition (document no 24 annexed to the rejoinder). This is specifically confirmed by the following document No 25 relating to the intentions of the Administration as to the second extension up to 31 December envisaged for the two nurses.

But it is at that time, in other words to be very specific between 12 and 15 November that the Administration's attitude changed abruptly with regard to Mrs Wollast. Document No 26 informs us of this. From that time onwards, as we have seen, the extension of the contract had a completely different object, that of waiting for the results of the enquiry ordered as a result of the incident in Avenue de la Joyeuse-Entree and that became even clearer after the applicant was forbidden to carry on her duties on 1 January 1963.

I think this change of attitude cannot be without influence on the legal character of the decision not to renew the contract. It is certain that as a general rule a decision of this kind only arises from the exercise of a discretionary power; however, in this case we have proof that the decision not to renew the contract had in effect a disciplinary character whose object was to prevent the applicant from taking part in the internal competition which would have allowed her to become integrated at the same time as her colleague, and this by reason of the incident of 29 October 1962. This is a classical example of misuse of powers, for the procedural requirements, although very brief, prescribed for disciplinary matters by Article 76 of the Conditions (a reasoned decision and the obligation to give the servant concerned the opportunity of submitting his defence) were not observed. Or at least the first condition was not observed: the Administration preferred to extend the contract for one month while prohibiting the servant concerned from exercising her duties during that period, and it preferred to refrain purely and simply from renewing the contract which had been extended in this way, thus excusing itself from taking a reasoned decision as prescribed by the Regulation at the very time when on 31 January the results of the enquiry had certainly already been known for several weeks. Does this mean that the Court must annul the decision impugned in so far as it refuses by implication to renew the contract for the reasons which we are acquainted with? According to the case law of this Court the answer would be no or at least not necessarily (Alvis, 4 July 1963, Rec. 1963, pp. 114-115) when, as in this case, it concerns a servant employed by virtue of a contract. As unlimited jurisdiction is conferred on the Court, it has all the powers to throw light on the facts, especially by means of an inquiry, and to decide on the basis of the results of this inquiry whether the disputed facts were such as to justify a disciplinary penalty.

As you know the first Chamber has availed itself of this right and is now in a position to pronounce on the matter. In these circumstances it would be inadvisable to limit oneself to annulment, or a finding of nullity, which is merely of a formal character and which obliges the Administration to re-examine the file and to take a new decision which, if unfavourable to the applicant, would give rise to a new dispute.

On the other hand, if the Court considers that the conduct of the servant concerned was not such as to justify the disciplinary measure in fact taken with regard to her, a decision ‘on the substance of the case’ would appear to be even more appropriate as the Administration is still in the position of having to regularize her position and to allow her, as it initially intended, to take part in the internal competition which it is proposing to hold in order to fill the two vacant posts. We know in fact by the replies to the questions put by order of the Court under A(c) 1 and 3 that the procedure set in motion by the notice of vacancy of 19 September 1962 was suspended at the request of the Provisional Joint Committee in order to allow for the appeal lodged by the applicant. It is clearly always preferable, when possible, to ‘give effect to the contract’ rather than to resolve its non-performance by damages, however high they may be (and I doubt very much whether the Court will be disposed to grant the sums requested in this case).

It thus remains for me to examine whether, taking account of the documents on the file and the examination of witnesses ordered by this Chamber of the Court, the incident of 29 October 1962 could have justified a penalty equivalent to dismissal.

My observations on this matter will be very brief since examination of the witnesses took place very recently and was very complete and also because this is a matter for appraisal which is necessarily subjective and on which everyone has his own opinion.

I would merely make the following remarks:

5. In short, the applicant can be blamed for two faults:

(a)for having failed to take her first-aid kit with her;

(b)for having allowed herself what could be called a ‘moment of indecision’ when, accompanied by Mr Albrecht, she found herself in front of the crowd which had gathered around the injured person.

There are doubts as to the second point, since it seems that it did not last more than a few seconds. Mr Albrecht testified:

‘At that moment, in fact immediately after her reply, I heard the police siren. The police got out of the car very quickly with the stretcher.’

In my opinion what is more serious is the fact that she forgot her first-aid kit, although at that time, as we have been told, there was only the doctor's kit which the applicant seems to have looked for in vain before leaving the surgery.

I recognise that hesitation is permissible. However, I do not think that, taking account of all the circumstances of the case, the applicant's conduct, and according to her file she was an excellent nurse, justified a penalty equivalent to dismissal by reason of this single incident. Consequently I would advise the Court to accept the principal conclusions of the second head of the application.

I am of the opinion that:

the contract as a member of the auxiliary staff of 13 April 1962 should be considered as still in force and as effective from 31 January 1963 until Mrs Wollast is able to participate in the internal competition which the Commission proposes to hold in order to fill the two vacant posts.

—the other conclusions in the application should be dismissed;

—the Commission should be ordered to bear the costs.

—

(1) Translated from the French.