JURISDICTION OF THE COURT
IT IS NECESSARY TO EXAMINE WHETHER THE COURT HAS JURISDICTION TO PASS JUDGMENT ON THE PRESENT APPLICATIONS . THIS ISSUE WAS RAISED BY THE DEFENDANT DURING THE PROCEEDINGS FOR INTERIM MEASURES, BUT IT WAS NOT PUT FORWARD AGAIN IN THE MAIN PROCEEDINGS .
UNDER ARTICLE 179 OF THE TREATY " THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT ".
AT THE PRESENT TIME, IN THE ABSENCE OF STAFF REGULATIONS AND PENDING THEIR ADOPTION, THE COMMUNITY 'S SERVANTS, IN THE BROADEST SENSE OF THE TERM, ARE SUBJECT TO A SPECIAL AND PROVISIONAL SET OF RULES . THIS SET OF RULES APPLICABLE TO THE SAID SERVANTS IS, SINCE IT HAS NOT BEEN EXPRESSLY DETERMINED AND DEFINED BY THE COMPETENT AUTHORITIES, THE SET OF RULES RESULTING FROM THE EXPRESS OR IMPLIED CONDITIONS WHICH WERE A BASIC ELEMENT IN THE CONTRACTS OF EMPLOYMENT OF THOSE SERVANTS AS BETWEEN THEM AND THE COMMUNITY .
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IN CONSEQUENCE, THE COURT HAS JURISDICTION TO PASS JUDGMENT ON DISPUTES BETWEEN THE COMMUNITY AND ITS SERVANTS IN THE PRESENT CONDITIONS AND CIRCUMSTANCES BECAUSE THERE EXISTS AS BETWEEN THEM A SET OF RULES WHICH NECESSARILY, ALBEIT STILL PROVISIONALLY, GOVERNS THEIR RELATIONSHIP .
FURTHERMORE, ARTICLE 173 OF THE TREATY LAYS DOWN THE GENERAL PRINCIPLE THAT " THE COURT OF JUSTICE SHALL REVIEW THE LEGALITY OF ACTS OF THE ... COMMISSION OTHER THAN RECOMMENDATIONS OR OPINIONS ". FAR FROM CONFLICTING WITH OR STANDING IN OPPOSITION TO THE APPLICATION OF ARTICLE 179 IN THE PRESENT CASES, THIS PRINCIPLE REINFORCES, IF IT WERE NECESSARY, THE SOUNDNESS OF SUCH APPLICATION .
THEREFORE THE PROPER COURSE IS TO REJECT AS UNFOUNDED THE OBJECTION THAT ARTICLE 179 CANNOT BE APPLIED TO THE PRESENT CASES BECAUSE THE COMMUNITY HAS NOT PROMULGATED THE STAFF REGULATIONS OF ITS SERVANTS AND HAS NOT IN THEIR ABSENCE EXPRESSLY DEFINED THE SET OF RULES PROVISIONALLY APPLICABLE PENDING THOSE REGULATIONS BEING DRAWN UP . THE OBJECTION MUST BE REJECTED ALSO BECAUSE, AS STATED ABOVE, THERE NECESSARILY EXISTS A SET OF RULES APPLICABLE TO THE LEGAL RELATIONSHIP EXISTING BETWEEN THE COMMUNITY AND ITS SERVANTS .
AGAIN, THE OBJECTION BASED ON THE DIFFERENT TERMINOLOGY ( SERVANTS, OFFICIALS, ETC .) MUST ALSO BE REJECTED AS UNFOUNDED, FOR IT IS OBVIOUS THAT IN THE PRESENT CIRCUMSTANCES AND PENDING PROMULGATION OF THE STAFF REGULATIONS OF OFFICIALS THE WORD " SERVANT " INCLUDES ALL PERSONS EMPLOYED IN THE SERVICES OF THE COMMUNITY .
LEGAL NATURE OF THE CONTRACTS OF EMPLOYMENT
UNDER THE CONDITIONS AND CIRCUMSTANCES IN WHICH THE APPLICANTS WERE ENGAGED BY THE COMMISSION, THE CONTRACTS OF EMPLOYMENT MADE BETWEEN THE PARTIES ARISE FROM THE IMPLIED AGREEMENT BETWEEN THEM .
THE QUESTION ARISES WHETHER THOSE CONTRACTS FALL WITHIN PUBLIC LAW OR PRIVATE LAW .
IN THE PRESENT CASES ONE OF THE CONTRACTING PARTIES, THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, ACTING WITHIN THE POWERS CONFERRED ON IT BY THE TREATY, HAS LEGAL PERSONALITY AS LAID DOWN BY ARTICLE 210 OF THE TREATY . THIS PERSONALITY IS ONE OF PUBLIC LAW BY VIRTUE OF THE POWERS AND DUTIES APPROPRIATE TO IT . CONSEQUENTLY THE CONTRACTS AT ISSUE WERE CONCLUDED BY A PERSON AT PUBLIC LAW .
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MOREOVER, THOSE CONTRACTS WERE CONCLUDED TO ENABLE THE LANGUAGE SERVICE OF THE COMMISSION TO FUNCTION PROPERLY . THE WORK OF THAT SERVICE, WHICH IS RESPONSIBLE FOR ENSURING THAT THE CONTENTS OF THE ACTS OF THE COMMISSION SHALL BE IDENTICAL IN THE FOUR OFFICIAL LANGUAGES OF THE COMMUNITY, CONSTITUTES AN IMPORTANT ELEMENT IN THE PROCEDURE WHICH HAS AS ITS PURPOSE THE FORMULATION IN EACH LANGUAGE OF THOSE ACTS; THUS THAT SERVICE IS OF THE SAME PUBLIC NATURE AS THE COMMISSION ITSELF .
THEREFORE THE CONTRACTS AT ISSUE COME UNDER PUBLIC LAW AND ARE SUBJECT TO THE GENERAL RULES OF ADMINISTRATIVE LAW .
EXISTENCE OF A RIGHT TO SECURITY OF TENURE
THE APPLICANTS ARGUE THAT, AS THE LEGAL RELATIONSHIP CREATED BY THE CONTRACTS AT ISSUE COMES UNDER PUBLIC LAW, IT CONFERS UPON THEM THE ADVANTAGES OF A SET OF RULES PENDING THE PROMULGATION OF STAFF REGULATIONS AND GIVES THEM A REASONABLE EXPECTATION OF PERMANENT EMPLOYMENT .
THEREFORE, THE CONTESTED DECISIONS TO DISMISS THE APPLICANTS, IN TERMINATING THAT RELATIONSHIP, INFRINGED THE RULES OF LAW APPLICABLE TO THE CONDITIONS OF THEIR ENGAGEMENT AND WERE ACCORDINGLY IRREGULAR .
THIS ARGUMENT IS UNFOUNDED .
ARTICLE 246 ( 3 ) OF THE TREATY PROVIDES THAT, UNTIL THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITY PROVIDED FOR IN ARTICLE 212 HAVE BEEN LAID DOWN, EACH INSTITUTION SHALL RECRUIT THE STAFF IT NEEDS AND TO THIS END CONCLUDE CONTRACTS OF LIMITED DURATION .
IT FOLLOWS FROM THAT PROVISION THAT NO RELATIONSHIP OF EMPLOYMENT EXISTING BETWEEN THE COMMUNITY AND ITS SERVANTS BEFORE THE STAFF REGULATIONS AND THE CONDITIONS OF EMPLOYMENT MENTIONED IN ARTICLE 212 OF THE TREATY HAVE BEEN LAID DOWN CAN CREATE ANY PERMANENT LEGAL RELATIONSHIP BETWEEN THE PARTIES .
IN CONSEQUENCE, STAFF RECRUITED BEFORE THAT DATE CANNOT, ON THE BASIS OF THE CONDITIONS UPON WHICH THEY WERE ENGAGED, LAY CLAIM TO APPOINTMENT TO PERMANENT POSTS OR TO THE BENEFITS OF THE FUTURE STAFF REGULATIONS, SINCE SUCH APPOINTMENTS AND SUCH BENEFITS ARE IN THEMSELVES INCONSISTENT WITH THE LIMITED NATURE OF ANY EMPLOYMENT RELATIONSHIP CREATED BEFORE THE ENTRY INTO FORCE OF THE SAID STAFF REGULATIONS OR CONDITIONS OF EMPLOYMENT .
ALTHOUGH THE CONTRACTS AT ISSUE WERE NEVERTHELESS CONCLUDED FOR AN INDEFINITE PERIOD, THIS IS EXPLAINED BY THE IMPOSSIBILITY AT THE TIME WHEN THEY WERE CONCLUDED OF ENTERING INTO CONTRACTS OF LIMITED DURATION PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY, BECAUSE THE PERMANENT REQUIREMENTS OF EACH SERVICE OF THE COMMISSION COULD NOT AT THAT TIME BE ADEQUATELY FORESEEN .
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SINCE THEREFORE THE CONTRACTS AT ISSUE, BELONGED TO A STAGE PRECEDING THE CONCLUSION OF THE CONTRACTS PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY, THEY CAN ON NO ACCOUNT IMPLY A COMMON INTENTION BETWEEN THE PARTIES TO ENTER INTO THE LEGAL RELATIONSHIP OF A CONTRACT OF PERMANENT EMPLOYMENT, FOR SUCH AN INTENTION IS CLEARLY CONTRARY TO THE PRINCIPLE LAID DOWN IN THE SAID ARTICLE 246 ( 3 ).
NOR CAN SUCH AN INTENTION BE DEDUCED FROM THE FACT THAT THE APPLICANTS IN CASES 43/59 AND 48/59 TOOK PART IN COMPETITIONS BEFORE ENTERING THE SERVICE OF THE COMMISSION, FOR THE OBJECT OF THOSE COMPETITIONS WAS TO MAKE AVAILABLE TO THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES A LIST OF CANDIDATES SUITABLE FOR SUBSEQUENT ENGAGEMENT, AND NOT TO RECRUIT STAFF ON A PERMANENT BASIS . MOREOVER, THE " RESULTS OF EACH COMPETITION WERE NOT KNOWN UNTIL SOME MONTHS AFTER THE DATE WHEN THE SAID APPLICANTS WERE ENGAGED, WHICH RULES OUT ANY CASUAL LINK BETWEEN, ON THE ONE HAND, THE HOLDING OF THOSE COMPETITIONS AND OF THE APPLICANTS' S TAKING PART IN THEM AND, ON THE OTHER, THEIR ENGAGEMENT .
THEREFORE, SINCE THE APPLICANTS HAVE NO CLAIM WHATSOEVER, TO SECURITY OF TENURE, THERE IS NO POINT CONSIDERING WHETHER THE DESCRIPTIONS " EXPERT " OR " AUXIALIARY " ACCURATELY REFLECT THE NATURE OF THE LEGAL RELATIONSHIP WHICH EXISTED BETWEEN THE PARTIES .
IN THESE CIRCUMSTANCES, CERTAIN MEASURES ADOPTED BY THE COMMISSION CONCERNING THE APPLIANTS AND CERTAIN PRIVILEGES WHICH IT GRANTED TO THEM CANNOT BE USED TO LEND PERMANENCE TO THE CONTRACTS OF EMPLOYMENT AT ISSUE SINCE THOSE MEASURES AND PRIVILEGES CANNOT CONFER ON THE SAID CONTRACTS A TENOR AND MEANING WHICH ARE EXPRESSLY PROHIBITED BY ARTICLE 246 ( 3 ) OF THE TREATY .
THERE IS, CONSEQUENTLY, NO BASIS FOR THE APPLICANTS'ARGUMENT TO THE EFFECT THAT THE COMMISSION, BY ITS CONDUCT, ENCOURAGED THEM TO EXPECT SECURITY OF TENURE AND THEREBY COMMITTED A WRONGFUL ACT .
FINALLY, IT IS NOT POSSIBLE, IN THE PRESENT CASES, TO RELY ON THE CASE-LAW OF THE COURT OF JUSTICE OF THE ECSC, WHICH HAS ACCEPTED THAT SERVANTS OF THE ECSC EMPLOYED PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS COULD EXPECT PERMANENT EMPLOYMENT, BECAUSE, UNLIKE ARTICLE 246 ( 3 ) OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, THE LAST PARAGRAPH OF ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS DOES NOT REQUIRE EVERY CONTRACT OF EMPLOYMENT CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS TO BE OF LIMITED DURATION, AND DOES NOT THEREBY PRECLUDE THE RELATIONSHIP WHEREBY THE EMPLOYEE HAS SOME SECURITY AND ENJOYS THE EXPECTATION OF THE BENEFIT OF THE STAFF REGULATIONS .
STATEMENT OF REASONS FOR THE DECISIONS OF DISMISSAL
THE CONDUCT OF AN AUTHORITY, IN ADMINISTRATIVE AS IN CONTRACTUAL MATTERS, IS AT ALL TIMES SUBJECT TO OBSERVANCE OF THE PRINCIPLE OF GOOD FAITH .
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THE CONTRACTS AT ISSUE, WHICH COME UNDER ADMINISTRATIVE LAW, ARE SUBJECT TO OBSERVANCE OF THIS PRINCIPLE AND THE FACT THAT THEY WERE PROVISIONAL OR TEMPORARY DOES NOT EXEMPT THEM FROM THIS REQUIREMENT .
CONSEQUENTLY THE CONTESTED DECISIONS OF DISMISSAL MUST, IN ORDER TO TERMINATE THOSE CONTRACTS, BE JUSTIFIED ON GROUNDS RELEVANT TO THE INTERESTS OF THE SERVICE AND THERE MUST BE NOTHING ARBITRARY ABOUT THEM, SUCH, FOR EXAMPLE, AS THE NEED TO DISPENSE WITH THE SERVICES OF AN UNQUALIFIED SERVANT OR OF ONE OCCUPYING A POST WHICH HAS BEEN ABOLISHED IN THE INTERESTS OF THE SERVICE .
THE STATEMENT OF THE GROUNDS ON WHICH AN ADMINISTRATION MEASURE IS DICTATED BY THE PUBLIC INTEREST MUST BE MADE IN TERMS WHICH ARE SPECIFIC AND CAPABLE OF BEING CHALLENGED FOR OTHERWISE THE OFFICIAL CONCERNED WOULD HAVE NO MEANS OF KNOWING WHETHER HIS LEGITIMATE INTERESTS HAVE BEEN RESPECTED OR INFRINGED, AND FURTHERMORE ANY REVIEW OF THE LEGALITY OF THE DECISION WOULD BE HAMPERED .
IN THE PRESENT CASES, THE LETTERS OF DISMISSAL DID NO MORE THAN NOTIFY THE APPLICANTS, WITHOUT GIVING ANY REASONS, OF THE ADMINISTRATION'S INTENTION TO TERMINATE THEIR CONTRACTS .
IT IS TRUE THAT, IN DECEMBER 1958, MR LANKES NOTIFIED ALL THE AUXILIARIES AND EXPERTS EMPLOYED IN THE LANGUAGE SERVICE, INCLUDING THE APPLICANTS, THAT IT WAS NECESSARY TO REDUCE THE STAFF OF THAT SERVICE AND THAT, IN CONSEQUENCE, NOT ALL THE SERVANTS COULD BE FOUND A PLACE IN THE FINAL ESTABLISHMENT .
THE APPLIANTS MAY WELL HAVE UNDERSTOOD THAT THE TERMINATION OF THEIR CONTRACTS WAS UNDOUBTEDLY CONNECTED IN ESSENCE WITH THAT NOFITICATION, BUT HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, AND, ABOVE ALL, TO THE CONSIDERABLE TIME WHICH ELAPSED BETWEEN THE NOTIFICATION, WHICH WAS IN VERY GENERAL TERMS, AND THE LETTERS TERMINATING THE CONTRACTS, THERE WAS A DUTY TO GIVE A SPECIFIC STATEMENT OF REASONS .
IN CONSEQUENCE THE LETTERS TERMINATING THE CONTRACTS MUST BE HELD TO BE INSUFFICIENT .
THIS DEFICIENCY CONSTITUTES A CONTRACTUAL WRONG ON THE PART OF THE COMMISSION FOR WHICH IT IS LIABLE .
ITS LIABILITY MUST, IN THE PRESENT CASE, BE ASSESSED IN THE LIGHT OF THE FACT THAT THE TERMINATION OF THE CONTRACTS OF EMPLOYMENT HAS TAKEN EFFECT AND THAT THE COMMISSION MUST DISCHARGE ITS OBLIGATION BY WAY OF DAMAGES .
IN ORDER TO ASSESS THE AMOUNT OF THE DAMAGE, ACCOUNT MUST BE TAKEN OF THE FACT THAT ALTHOUGH THE APPLICANTS HAVE EITHER BEEN REINSTATED IN TO THEIR FORMER POSTS, OR HAVE FOUND NEW EMPLOYMENT, NEVERTHELESS THEY HAVE SUFFERED DIRECT NON-MATERIAL DAMAGE BY REASON OF THE ANXIETIES WHICH THE PRECARIOUS POSITION ARISING FROM DEFAULT OF THE COMMISSION CAUSED THEM .
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THE COURT HAS EXTRACTED FROM THE CIRCUMSTANCES OF THE CASE FACTORS ENABLING IT IN EQUITY, TO ASSESS THE DAMAGES AT FB 60 000 FOR EACH OF THE APPLICANTS .
PERIOD OF NOTICE GRANTED BY THE COMMISSION
IT IS ALSO APPROPRIATE TO CONSIDER WHETHER THE PERIODS OF NOTICE GRANTED BY THE COMMISSION IN TERMINATING THE CONTRACTS AT ISSUE CONFORMED TO NORMAL PRACTICE .
IN THE ABSENCE OF ANY RELEVANT REQUIREMENTS IN THE CONTRACTS OF EMPLOYMENT, IT IS OF NO AVAIL TO REFER TO THE CONDITIONS APPLICABLE TO TEMPORARY SERVANTS OF THE ECSC, BECAUSE THOSE CONDITIONS MAKE NO PROVISION FOR CONTRACTS OF INDEFINITE DURATION IN THE ENGAGEMENT OF TEMPORARY OFFICIALS; IT IS CONSEQUENTLY NECESSARY TO RELY ON THE GENERAL PRINCIPLES OF LAW AND ON THE " CONDITIONS OF ENGAGEMENT OF AUXILIARY STAFF " TO WHICH THE DEFENDANT REFERS .
ARTICLE 2 OF THE SAID CONDITIONS PROVIDES THAT, FOR THE TERMINATION OF CONTRACTS FOR AN INDEFINITE PERIOD, THE PERIOD OF NOTICE SHALL BE CALCULATED ON THE BASIS OF ONE DAY'S NOTICE FOR EVERY WORKING DAY .
THE CONTESTED DECISIONS TO DISMISS MISS EVA VON LACHMUELLER AND MR BERNARD PEUVRIER ONLY GAVE THEM ABOUT ONE MONTH'S NOTICE, WHEN, ACCORDING TO THE AFORESAID ARTICLE 2, THE PERIOD OF NOTICE OUGHT TO HAVE BEEN LONGER .
HOWEVER, THE PERIOD WAS TWICE EXTENDED BY A MONTH .
THE DECISION TO DISMISS MR ROGER EHRHARDT GAVE HIM MORE THAN TWO MONTHS' NOTICE . THAT PERIOD OF NOTICE OF ITSELF SATISFIES THE REQUIREMENTS OF THE AFORESAID ARTICLE 2 .
FURTHERMORE THE PERIOD WAS EXTENDED BY A MONTH .
IN VIEW OF THIS, AND SINCE THE APPLICANTS CONTINUED TO RECEIVE THEIR EMOLUMENTS UNTIL THE EXPIRY OF THIS PERIOD, HAVING AT THE SAME TIME HAD THE OPPORTUNITY OF USING IT TO SEEK FRESH EMPLOYMENT, THE PERIOD OF NOTICE ACTUALLY GIVEN BY THE COMMISSION TO THE APPLICANTS WAS IN THE REGION OF THREE MONTHS .
BEARING IN MIND THE AGE AND THE FAMILY SITUATION OF EACH OF THE APPLICANTS, TOGETHER WITH THEIR CHANCES OF FINDING FRESH EMPLOYMENT, THE COURT CONSIDERS THIS PERIOD OF NOTICE TO BE REASONABLE . ACCORDINGLY, NO BLAME ATTACHES TO THE COMMISSION UNDER THIS HEAD .
UNDER ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
UNDER THE FIRST PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE AFORESAID RULES, WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .
THE APPLICANTS HAVE FAILED ON THE HEADS OF THEIR APPLICATION FOR A RULING THAT THEY ARE ENTITLED TO SECURITY OF TENURE AND THAT THE PERIOD OF NOTICE GIVEN BY THE DEFENDANT FOR TERMINATION OF THE CONTRACTS IN QUESTION WAS ILLEGAL .
ACCORDINGLY, IT IS THOUGHT FIT TO AWARD COSTS AS STATED IN THE OPERATIVE WORDS BELOW .
THE COURT
HEREBY :
1 . ORDERS THE COMMISSION OF THE EEC TO PAY THE SUM OF FB 60 000 TO EACH OF THE APPLICANTS;
2 . AWARDS THE APPLICANTS TWO THIRDS OF THEIR COSTS AGAINST THE DEFENDANT, AND ORDERS THE LATTER TO BEAR ITS OWN COSTS;
3 . ORDERS THE APPLICANTS IN CASES 43/59 AND 45/59 TO BEAR THEIR OWN COSTS IN THE PROCEEDINGS FOR INTERIM MEASURES .
