P.96
I - ADMISSIBILITY
THE APPLICANT HAS DIRECTED HER APPLICATION ' AGAINST THE EEC OR, ALTERNATIVELY, AGAINST THE COMMISSION, BOTH OF WHOM SHE DESIGNATES AS OPPOSING PARTIES '.
ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC REFERS TO DISPUTES BETWEEN ' ONE OF THE COMMUNITIES ' AND ONE OF ITS OFFICIALS . ARTICLE 179 OF THE EEC TREATY PROVIDES THAT ' 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 '.
THE INSTITUTION, AS THE SUPREME APPOINTING AUTHORITY, HAS THE RIGHT TO BE A PARTY TO LEGAL PROCEEDINGS IN ACTIONS BROUGHT BY ITS STAFF .
ARTICLE 90 OF THE STAFF REGULATIONS GOVERNING THE NON-CONTENTIOUS PROCEDURE FOR DEALING WITH REQUESTS OR COMPLAINTS BY OFFICIALS SPECIFIES THAT SUCH A PROCEDURE, WHICH LOGICALLY PRECEDES AN APPEAL TO THE COURT, MUST BE INITIATED WITH THE APPOINTING AUTHORITY OF THEIR INSTITUTION . IN THE ABSENCE OF PROVISIONS TO THE CONTRARY, AN APPEAL TO THE COURT UNDER ARTICLE 91 MUST BE GOVERNED BY SIMILAR RULES . THE COMMISSION IS AUTHORIZED TO APPEAR ON BEHALF OF THE COMMUNITY .
THE APPLICATION MUST THUS BE CONSIDERED AS ADMISSIBLE AND DIRECTED AGAINST THE COMMISSION .
II - AS TO THE ALLEGED GROUNDS OF COMPLAINT
IT IS APPROPRIATE TO EXAMINE THE SECOND HEAD OF THE APPLICATION BEFORE THE FIRST . IN FACT, ON THE ASSUMPTION THAT THE ' TERMINATION ' OF WHICH THE APPLICANT COMPLAINS WAS LEGAL, IT WOULD FOLLOW THAT SHE COULD NO LONGER CLAIM TO BE SUBJECT TO THE ESTABLISHMENT PROCEDURE PROVIDED FOR BY ARTICLE 102 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC SINCE SHE WOULD NO LONGER BE IN THE SERVICE OF THE COMMUNITY .
1 . ON THE SECOND HEAD OF THE APPLICATION
( A ) THE DEFENDANT DENIES THAT THERE WAS A ' DECISION TO TERMINATE ' AS THE APPLICANT'S CONTRACT WAS FOR A FIXED PERIOD AND, IN THE ABSENCE OF EXTENSION, IT THEREFORE CAME TO AN END IPSO JURE ON 31 JANUARY 1963 .
P.97
THIS OBJECTION MUST BE DISMISSED . IN THIS CASE IT FOLLOWS FROM ALL THE EVENTS OCCURRING BEFORE 31 JANUARY 1963 THAT THE FACT THAT THE APPLICANT'S CONTRACT WAS NOT EXTENDED BEYOND THAT DATE, FAR FROM APPEARING A SIMPLE FAILURE TO ACT, OCCURRING AS IT WERE ACCIDENTALLY, CONSTITUTES A DEFINITIVE DEMONSTRATION OF INTENTION WITH REGARD TO A MATTER ON WHICH THE DEFENDANT WAS BOUND TO ADOPT A DEFINITE POSITION . THERE WAS CONSEQUENTLY A DECISION .
( B ) THE DEFENDANT HAS ADMITTED THAT THE REASON FOR THIS DECISION WAS THE APPLICANT'S CONDUCT AT THE ACCIDENT OF 29 OCTOBER 1962 . AS THIS IS A MATTER OF AN APPEAL IN WHICH THE COURT HAS UNLIMITED JURISDICTION UNDER ARTICLE 91(1 ) OF THE STAFF REGULATIONS, THE COURT IS EMPOWERED TO EXAMINE THE MERITS OF THE SAID REASON . IN SO DOING THE COURT RELIES IN PARTICULAR ON THE EVIDENCE OF THE WITNESSES HEARD WITH REGARD TO THE INCIDENT IN QUESTION .
AT THE TIME WHEN THE APPLICANT WAS TOLD OF THE ACCIDENT SHE WAS ON DUTY AND HER INSTRUCTIONS WERE THAT SHE SHOULD LEAVE HER POST ONLY IN CIRCUMSTANCES OF EXTREME URGENCY .
IT IS THEREFORE AT LEAST COMPREHENSIBLE THAT THE APPLICANT SHOULD HAVE SOUGHT TO OBTAIN MORE PRECISE INFORMATION ON THE ACCIDENT, WITH WHICH THE FIRST MESSAGE HAD OMITTED TO SUPPLY HER .
THE MESSAGE FROM MR ALBRECHT REACHED THE APPLICANT BY WAY OF TWO MESSENGERS WHOSE MOTHER TONGUE WAS NEITHER THAT OF THE WITNESS NOR OF THE APPLICANT .
IT THUS APPEARS FROM WHAT WAS SAID BY THE WITNESSES THAT THE APPLICANT CONSEQUENTLY RECEIVED RATHER FRAGMENTARY INFORMATION WHICH WAS GIVEN THROUGH A CLOSED DOOR WHEN THE INJECTION WHICH SHE WAS ADMINISTERING TO ANOTHER OFFICIAL REQUIRED ALL HER ATTENTION . CONSEQUENTLY THE PROBLEM WHETHER THE APPLICANT ACTED TOO SLOWLY ONLY ARISES FROM THE TIME WHEN MR ALBRECHT SPOKE TO HER DIRECTLY; SEEN FROM THIS ANGLE THERE WAS NO PREJUDICIAL DELAY . IN RESPECT OF THE APPLICANT'S HESITATION IN THE PRESENCE OF THE CROWD WHICH HAD GATHERED AROUND THE INJURED PERSON, THIS ATTITUDE, WHEN ONE TAKES ACCOUNT OF THE CIRCUMSTANCES IN WHICH THIS HESITATION OCCURRED AS WELL AS ITS BRIEF DURATION, IS NOT CAPABLE OF AN UNEQUIVOCAL INTERPRETATION AND CANNOT BE CONSIDERED AS CONSTITUTING MISCONDUCT .
IN ADDITION, THE APPLICANT'S SUPERIOR, THE WITNESS DR DE KETELAERE, STATED THAT ' THE PROFESSIONAL ABILITIES AND HUMAN QUALITIES ' OF THE APPLICANT ' ARE EXCELLENT '.
IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT, IN WHATEVER WAY THE APPLICANT'S CONDUCT IS TO BE APPRAISED, THE DEFENDANT'S REACTION WAS CLEARLY EXAGGERATED .
P.98
AS THE DISPUTED DECISION WAS BASED ON GROUNDS WHICH IN LAW ARE INVALID IT MUST BE ANNULLED WITHOUT ANY NECESSITY FOR AN EXAMINATION OF THE OTHER GROUNDS OF COMPLAINT RAISED IN RESPECT OF IT .
( C ) THE APPLICANT FURTHER SUBMITS THAT THE COURT SHOULD DECLARE THAT SHE ' MUST STILL BE REGARDED AS BEING IN THE SERVICE OF THE COMMISSION UNDER THE TERMS AND CONDITIONS OF THE CONTRACT OF EMPLOYMENT OF 13 APRIL 1962, FOR AN INDEFINITE PERIOD, BUT WITHOUT PREJUDICE TO THE RESERVATIONS MADE BY THE APPLICANT WITH REGARD TO HER CLASSIFICATION '. AS HAS BEEN STATED, SINCE THIS APPEAL IS ONE IN WHICH THE COURT HAS UNLIMITED JURISDICTION, THESE CONCLUSIONS ARE ADMISSIBLE .
AS THE DECISION IMPUGNED, HAVING BEEN ANNULLED, MUST BE CONSIDERED AS BEING NULL AND VOID, THE APPLICANT IS DEEMED TO BE STILL IN THE DEFENDANT'S SERVICE . IN THIS CASE THERE IS NO PRACTICAL REASON LEADING TO THE CONCLUSION THAT COMPENSATION FOR THE ILLEGAL NATURE OF THE DECISION IMPUGNED SHOULD TAKE ANY FORM OTHER THAN THAT OF RESTITUTIO IN INTEGRUM .
THE APPLICANT'S CONCLUSIONS MUST THEREFORE BE ACCEPTED SO THAT SHE IS DEEMED TO BE STILL IN THE DEFENDANT'S SERVICE UNDER THE MATERIAL CONDITIONS WHICH GOVERNED HER CONTRACT OF 31 JANUARY 1963, INCLUDING THE BENEFITS ARISING FROM THIS CONTRACT IN RESPECT OF SOCIAL SECURITY AND MEDICAL AID .
( D ) FINALLY, THE APPLICANT CLAIMS THAT THE COURT SHOULD DECLARE THAT THE DEFENDANT ' OWES THE APPLICANT HER MONTHLY SALARY FROM 1 FEBRUARY 1963 '.
FOR THE REASONS SET OUT ABOVE THIS APPLICATION IS IN PRINCIPLE WELL FOUNDED .
NEVERTHELESS, IN ORDER TO AVOID GRANTING AN UNJUSTIFIED GAIN, ACCOUNT MUST BE TAKEN OF THE FACT THAT, BECAUSE SHE DID NOT CARRY OUT HER DUTIES FROM THE ABOVE-MENTIONED DATE, THE APPLICANT WAS ABLE TO AVOID CERTAIN EXPENSES WHICH SHE WOULD HAVE HAD TO INCUR HAD SHE ACTUALLY REMAINED AT WORK .
IN PARTICULAR IT SEEMS CLEAR THAT A HOUSEHOLD WHICH INCLUDES THREE VERY YOUNG CHILDREN MUST ENGAGE DOMESTIC HELP WHEN BOTH PARENTS ARE GAINFULLY OCCUPIED .
THE COURT ASSESSES THE SAVINGS WHICH THE APPLICANT WAS THUS ABLE TO MAKE AT 15 PER CENT .
2 . AS TO THE FIRST HEAD OF THE APPLICATION
( A ) ACCORDING TO THE DEFENDANT THE LETTER IMPUGNED IS NOT A DECISION AGAINST WHICH AN APPEAL CAN BE LODGED . THIS LETTER IN FACT FOLLOWED A LETTER FROM THE APPLICANT DESCRIBED BY HER AS A ' REQUEST ' OR A ' COMPLAINT ' WITHIN THE MEANING OF ARTICLE 73 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS AND OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS, WHEREAS THE APPLICANT WAS UNABLE TO HAVE RECOURSE TO THE PROCEDURE PRESCRIBED IN THE ABOVE-MENTIONED PROVISIONS BY REASON OF THE FACT THAT SHE WAS NO LONGER IN THE SERVICE OF THE DEFENDANT . THIS OBJECTION MUST BE DISMISSED . IN FACT AS THE ABOVE PROCEDURE IS A PRELIMINARY TO AN APPEAL TO THE COURT, IT MAY BE USED IN ALL CASES WHICH MAY GIVE RISE TO AN APPEAL TO THE COURT, INCLUDING CASES IN WHICH THE DISPUTE IS CONCERNED SPECIFICALLY WITH THE LEGALITY OF THE EXPULSION OF A SERVANT FROM THE RANKS OF THE STAFF .
( B ) THE DEFENDANT RAISES ANOTHER OBJECTION OF INADMISSIBILITY BASED ON ALLEGED ESTOPPEL .
THE DEFENDANT ASSERTS AS TO THIS THAT THE REAL DECISION SANCTIONING 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 RELEVANT NOTICES OF VACANCY AND THAT THE APPLICANT, FAR FROM CONTESTING THESE DECISIONS WITHIN THE TIME LIMITS LAID DOWN BY LAW, EVEN OFFERED HERSELF AS CANDIDATE FOR ONE OF THE POSTS IN QUESTION .
THIS OBJECTION MUST BE DISMISSED . IT IS BASED ON THE ASSUMPTION THAT THE APPLICANT RECOGNIZED BY IMPLICATION THAT SHE COULD NOT CLAIM TO BE INTEGRATED IN THE POST SHE WAS HOLDING . AT THAT TIME THE APPLICANT COULD HOPE TO BECOME INTEGRATED IN THE WAY IN WHICH THE DEFENDANT ITSELF SEEMED TO OFFER .
IN THESE CIRCUMSTANCES SHE HAD NO REASONABLE GROUNDS FOR INITIATING A DISCUSSION ON ANY RIGHTS CONFERRED ON HER BY ARTICLE 102 OF THE STAFF REGULATIONS . CONSEQUENTLY IT WOULD BE CONTRARY TO GOOD FAITH TO INTERPRET THE APPLICANT'S INACTION AS ACQUIESCENCE IN THE DEFENDANT'S INTERPRETATION OF THE SAID PROVISION .
( C ) ANY RIGHT ON THE PART OF THE APPLICANT TO TAKE ADVANTAGE OF THE INTEGRATION PROCEDURE DEPENDS ESSENTIALLY ON THE QUESTION WHETHER, ON THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, THAT IS TO SAY, 1 JANUARY 1962, SHE WAS OCCUPYING A ' PERMANENT POST ' WITH THE COMMISSION . THIS CONCEPT ONLY COVERS THE POSTS EXPRESSLY PRESCRIBED AS ' PERMANENT ', OR DESCRIBED IN A SIMILAR MANNER, IN THE BUDGET OF THE COMMUNITY . THIS INTERPRETATION IS CONFIRMED BY ARTICLE 1 OF THE STAFF REGULATIONS ACCORDING TO WHICH THE POSITION OF AN OFFICIAL IS CHARACTERIZED BY THE FACT OF HAVING BEEN APPOINTED TO A PERMANENT POST; THIS IS BY CONTRAST IN PARTICULAR WITH AUXILIARY STAFF WHO ARE GOVERNED BY THE ' CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS '.
P.100
THESE CONSIDERATIONS ARE NOT ALTERED BY THE FACT THAT BEFORE THE ENTRY INTO FORCE OF THE SAID REGULATIONS AND CONDITIONS THE POSITION OF CERTAIN OF THE COMMUNITY'S AUXILIARY STAFF PRESENTED IN FACT NO REAL DIFFERENCE FROM THAT OF SERVANTS EMPLOYED ON THE BASIS OF A SO-CALLED ' BRUSSELS ' CONTRACT .
IF ONE WERE IN FACT TO RECOGNIZE THAT THESE MEMBERS OF THE AUXILIARY STAFF HOLD THE RIGHTS LAID DOWN BY ARTICLE 102 OF THE STAFF REGULATIONS, EACH INSTITUTION WOULD HAVE BEEN ABLE TO, OR PERHAPS WOULD EVEN HAVE HAD TO, INCREASE TO A CONSIDERABLE EXTENT THE NUMBER OF PERMANENT POSTS AUTHORIZED BY THE BUDGETARY AUTHORITY, THUS STULTIFYING BOTH THE POWERS AND THE INTENTIONS OF THE BUDGETARY AUTHORITY .
IT IS COMMON GROUND IN THIS CASE THAT THE APPLICANT WAS ENGAGED AS A MEMBER OF THE AUXILIARY STAFF AND HER SALARY HAD BEEN ENTERED IN THE BUDGET IN THE CHAPTER ' AUXILIARY STAFF '. THUS, AT THE DATE OF ENTRY INTO FORCE OF THE REGULATIONS SHE DID NOT OCCUPY A ' PERMANENT POST '. THE APPLICANT'S CONCLUSIONS MUST CONSEQUENTLY BE DISMISSED AS UNFOUNDED .
NEVERTHELESS TAKING ACCOUNT OF THE CONSIDERATIONS SET OUT UNDER 1 ABOVE, THE COURT MUST RULE THAT THE DEFENDANT IS BOUND TO ALLOW THE APPLICANT TO TAKE PART IN THE COMPETITION ORGANIZED IN ACCORDANCE WITH ARTICLE 29(1)(B ) OF THE STAFF REGULATIONS FOR THE POST SPECIFIED IN NOTICE OF VACANCY NO 87 . FOR THE PURPOSES OF THE SAID COMPETITION THE DEFENDANT SHALL NOT HOLD AGAINST THE APPLICANT HER CONDUCT AT THE INCIDENT ON 29 OCTOBER 1962 .
3 . AS TO THE THIRD HEAD OF THE APPLICATION
THESE CONCLUSIONS HAVE BEEN DRAWN UP ONLY ' IN THE EVENT OF THE COURT CONSIDERING THE APPLICANT'S CONTRACT TO BE NO LONGER IN FORCE '. IN THIS CASE THE SAID CONCLUSIONS HAVE NOW LOST THEIR PURPOSE .
4 . AS TO THE FOURTH HEAD OF THE APPLICATION
THIS JUDGMENT FULLY ACCEPTS THE APPLICANT'S CASE WITH REGARD TO THE ESSENTIAL MATTERS OF HER REQUEST, NAMELY HER REINSTATEMENT IN THE SERVICE OF THE DEFENDANT . THESE CONCLUSIONS MUST CONSEQUENTLY BE DISMISSED FOR LACK OF LEGAL INTEREST .
5 . AS TO THE SIXTH HEAD OF THE APPLICATION
AS THE COURT HAS ALREADY AT ITS DISPOSAL THE FACTORS NECESSARY TO JUDGE THIS DISPUTE, THE PRODUCTION OF THE DOCUMENTS WHICH ARE THE SUBJECT OF THIS PART OF THE CONCLUSIONS HAS NO FURTHER LEGAL INTEREST .
UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY AN INSTITUTION IN APPEALS REFERRED TO IN ARTICLE 95(1 ) OF THE SAID RULES SHALL BE BORNE BY IT .
UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADING .
IN THIS CASE THE APPLICANT HAS PRESENTED CONCLUSIONS IN ACCORDANCE WITH THE ABOVE PROVISIONS AND HAS SUCCEEDED IN THE ESSENTIAL POINTS OF HER APPLICATION . THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE ACTION .
UNDER THE TERMS OF ARTICLE 76(5 ) OF THE RULES OF PROCEDURE IN ITS DECISION AS TO COSTS THE COURT SHALL ORDER SUMS EQUAL TO THE AMOUNTS PAID OUT AS LEGAL AID TO BE PAID OVER TO THE CASHIER OF THE COURT AND TO BE BORNE BY THE PARTY WHO IS ORDERED TO PAY THE SAID COSTS .
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ( A ) ANNULS THE DEFENDANT'S DECISION NOT TO EXTEND THE APPLICANT'S CONTRACT BEYOND 31 JANUARY 1963;
( B ) ORDERS THAT THE APPLICANT MUST BE DEEMED TO BE STILL IN THE DEFENDANT'S SERVICE UNDER THE MATERIAL CONDITIONS WHICH GOVERNED HER CONTRACT ON 31 JANUARY 1963;
( C ) ORDERS THE DEFENDANT TO PAY THE APPLICANT IN THE CIRCUMSTANCES SET OUT UNDER ( B ) ABOVE HER MONTHLY SALARY FROM 1 FEBRUARY 1963, REDUCED BY 15 PER CENT FOR THE PERIOD BETWEEN 1 FEBRUARY 1963 AND THE DATE OF DELIVERY OF THIS JUDGMENT;
( D ) RULES THAT THE APPLICANT IS ENTITLED TO THE OTHER BENEFITS ARISING FROM HER CONTRACT, IN PARTICULAR WITH REGARD TO SOCIAL SECURITY AND MEDICAL AID, UNDER THE CONDITIONS SET OUT UNDER ( B ) ABOVE;
2 . ( A ) DISMISSES THE REQUEST FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE LETTER OF 1 MARCH 1963 ADDRESSED TO THE APPLICANT BY MR SMULDERS, DECLARING THAT THE ESTABLISHMENT PROCEDURE REFERRED TO IN ARTICLE 102 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC CANNOT BE APPLIED TO HER;
( B ) ORDERS THE DEFENDANT TO ALLOW THE APPLICANT TO TAKE PART IN THE COMPETITION ORGANIZED PURSUANT TO ARTICLE 29(1)(B ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC FOR THE POST SPECIFIED IN NOTICE OF VACANCY NO 87 OF THE COMMISSION;
( C ) ORDERS THAT, FOR THE PURPOSES OF THE SAID COMPETITION, THE DEFENDANT SHALL NOT HOLD AGAINST THE APPLICANT HER CONDUCT AT THE INCIDENT ON 29 OCTOBER 1962;
3 . DISMISSES THE REQUEST FOR ANNULMENT OF THE SUSPENSION FROM DUTY OF THE APPLICANT DURING THE MONTH OF JANUARY 1963 AND THE CONCLUSION THAT THE DEFENDANT PAY THE APPLICANT 1 FB BY WAY OF DAMAGES;
4 . ( A ) ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION;
( B ) ORDERS THE DEFENDANT TO REIMBURSE THE COURT FOR THE COSTS INCURRED BY IT IN RESPECT OF LEGAL AID .
