1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 29 JULY 1981 AND 7 SEPTEMBER 1981 RESPECTIVELY , ARMANDO TOLEDANO LAREDO AND MARIO GARILLI , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT ACTIONS FOR A DECLARATION THAT PERIODS OF SERVICE WITH THE COMMISSION COMPLETED BY THEM AS MEMBERS OF THE AUXILIARY STAFF BEFORE APPOINTMENT AS PROBATIONARY OFFICIALS MUST BE REGARDED AS PERIODS OF SERVICE COMPLETED BY THEM AS TEMPORARY EMPLOYEES AND THEREFORE FOR ANNULMENT OF THE COMMISSION ' S DECISIONS WHEREBY IT REFUSED TO RECOGNIZE SUCH PERIODS FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME .
2 MR TOLEDANO LAREDO WAS ENGAGED BY THE COMMISSION AS A MEMBER OF THE AUXILIARY STAFF IN CATEGORY A , GROUP I , CLASS 2 , UNDER A SIX-MONTH CONTRACT DATED 28 JULY 1964 WHICH TOOK EFFECT ON 6 OCTOBER 1964 AND WAS EXTENDED FIRST UNTIL 5 OCTOBER 1965 AND SUBSEQUENTLY FOR AN INDEFINITE PERIOD . HE WAS APPOINTED AS A PROBATIONARY OFFICIAL IN GRADE A 4 ON 1 OCTOBER 1966 AFTER SUCCESSFULLY TAKING PART IN OPEN COMPETITION NO EEC/829/A WHICH TOOK PLACE ON 23 JUNE 1966 .
3 MR GARILLI WAS ENGAGED BY THE COMMISSION AS A MEMBER OF THE AUXILIARY STAFF ( CATEGORY B , GROUP IV , CLASS 1 ) UNDER A SIX-MONTH CONTRACT DATED 13 AUGUST 1964 WHICH TOOK EFFECT ON 1 SEPTEMBER 1964 AND WAS EXTENDED FIRST UNTIL 31 AUGUST 1965 AND SUBSEQUENTLY FOR AN INDEFINITE PERIOD . HE WAS APPOINTED AS A PROBATIONARY OFFICIAL IN GRADE A 7 ON 1 APRIL 1967 AFTER SUCCESSFULLY TAKING PART IN OPEN COMPETITION NO 5155 WHICH TOOK PLACE ON 21 SEPTEMBER 1966 .
4 DURING THE WRITTEN PROCEDURE THE COMMISSION ACCEDED TO MR TOLEDANO LAREDO ' S CLAIM SOLELY FOR THE PERIOD FROM 6 OCTOBER 1965 TO 30 SEPTEMBER 1966 ON THE GROUND THAT DURING THAT PERIOD HE HAD PERFORMED PRACTICALLY THE SAME DUTIES AS HE PERFORMED AFTER HE WAS ESTABLISHED . BY LETTER DATED 11 AUGUST 1981 THE COMMISSION INFORMED MR TOLEDANO LAREDO THAT , IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY IT ON THE BASIS OF THE COURT ' S JUDGMENT OF 1 FEBRUARY 1979 IN CASE 17/78 ( FAUSTA DESHORMES V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1971 ) ECR 189 ), THE FACT THAT THE DUTIES WHICH HE PERFORMED BOTH BEFORE AND AFTER HE WAS ESTABLISHED WERE IDENTICAL ENABLED IT TO PRESUME THAT FOR THE PART OF HIS SERVICE AS A MEMBER OF THE AUXILIARY STAFF AFTER THE FIRST 12 MONTHS AND IMMEDIATELY PRECEDING HIS APPOINTMENT AS AN OFFICIAL HE WAS PERFORMING ' ' PERMANENT COMMUNITY PUBLIC SERVICE DUTIES ' ' AND NOT DUTIES WHICH MIGHT LAWFULLY BE ASSIGNED TO A MEMBER OF THE AUXILIARY STAFF . AS REGARDS MR GARILLI , WHO DID NOT PERFORM THE SAME DUTIES BOTH BEFORE AND AFTER HE WAS ESTABLISHED , THE COMMISSION REJECTED HIS CLAIM AS WHOLLY UNFOUNDED .
5 IN SUPPORT OF THEIR CLAIMS THE APPLICANTS MAINTAIN THAT THEY SATISFY THE REQUIREMENTS LAID DOWN IN THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES FOR RECOGNITION OF THE STATUS OF TEMPORARY EMPLOYEES , AS DEFINED BY THE COURT IN ITS JUDGMENT OF 1 FEBRUARY 1979 , CITED ABOVE , AND IN ITS JUDGMENT OF 19 NOVEMBER 1981 IN CASE 106/80 ( BERNARD FOURNIER V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1981 ) ECR 2759 ).
6 IN THOSE JUDGMENTS THE COURT STATED THAT ' ' THE DIFFERENCE BETWEEN AUXILIARY STAFF AND TEMPORARY STAFF LIES IN THE FACT THAT A MEMBER OF THE TEMPORARY STAFF FILLS A PERMANENT POST INCLUDED IN THE LIST OF POSTS , WHEREAS , EXCEPT IN THE CASE OF TEMPORARY REPLACEMENT OF AN OFFICIAL , A MEMBER OF THE AUXILIARY STAFF PERFORMS ADMINISTRATIVE WORK WITHOUT BEING ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS ' ' AND THAT AN IMPORTANT CHARACTERISTIC OF A CONTRACT FOR THE EMPLOYMENT OF AUXILIARY STAFF ' ' IS ITS PRECARIOUSNESS IN TIME , SINCE IT CAN BE USED ONLY TO EFFECT A TEMPORARY REPLACEMENT OR TO ALLOW THE PERFORMANCE OF ADMINISTRATIVE DUTIES WHICH ARE OF A TRANSITORY NATURE , WHICH FILL AN URGENT NEED OR WHICH ARE NOT CLEARLY DEFINED . ' '
7 A PERSON WHO CLAIMS THAT A PERIOD OF EMPLOYMENT CLASSIFIED AS HAVING BEEN COMPLETED IN THE CAPACITY OF A MEMBER OF THE AUXILIARY STAFF SHOULD BE RECOGNIZED AS HAVING BEEN COMPLETED IN THE CAPACITY OF A TEMPORARY EMPLOYEE MUST THEREFORE FIRST PROVE THAT POSTS CORRESPONDING TO THE DUTIES PERFORMED BY HIM APPEARED AT THAT TIME IN THE LIST OF POSTS FOR THE INSTITUTION AND WERE AVAILABLE .
8 MR TOLEDANO LAREDO CLAIMED THAT SUCH POSTS WERE INCLUDED IN THE LIST OF POSTS , AT LEAST FOR THE COMMISSION AS A WHOLE , WHEN HE WAS ENGAGED AS A MEMBER OF THE AUXILIARY STAFF AND THAT THEY WERE AVAILABLE .
9 MR GARILLI ALSO CLAIMED THAT POSTS CORRESPONDING TO THE DUTIES PERFORMED BY HIM AS A MEMBER OF THE AUXILIARY STAFF WERE AVAILABLE , AT LEAST IN THE COMMISSION ' S LIST OF POSTS AS A WHOLE . HE STATED THAT ON 31 DECEMBER 1964 THAT LIST CONTAINED 454 POSTS IN CATEGORY B , OF WHICH 137 , OR 34.5% , WERE AVAILABLE AT THAT TIME .
10 THE COMMISSION HAS NOT CHALLENGED THE CORRECTNESS OF THE APPLICANTS ' ALLEGATIONS . IT HAS MERELY POINTED OUT THAT THERE WERE NO POSTS CORRESPONDING TO THE DUTIES PERFORMED BY THE APPLICANTS AVAILABLE IN THE DEPARTMENTS TO WHICH THEY HAD BEEN ASSIGNED . IT CONSIDERS THAT THE REQUIREMENT OF THE EXISTENCE OF A POST PROVIDED FOR IN THE BUDGET IS SATISFIED ONLY IF THE POST IS AVAILABLE IN THE DEPARTMENT CONCERNED AND NOT IN THE INSTITUTION AS A WHOLE .
11 THAT VIEW IS NOT , HOWEVER , SUPPORTED BY THE WORDING OF ARTICLE 2 ( A ) AND ( B ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES , WHICH DEFINES TEMPORARY STAFF AS STAFF ENGAGED TO FILL A POST ' ' INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO EACH INSTITUTION . ' '
12 IN ORDER TO OBTAIN RECOGNITION THAT A PERIOD CLASSIFIED AS HAVING BEEN COMPLETED BY THEM AS MEMBERS OF THE AUXILIARY STAFF IS TO BE REGARDED AS A PERIOD COMPLETED AS MEMBERS OF THE TEMPORARY STAFF , THE APPLICANTS MUST ALSO PROVE THAT THE DUTIES WHICH THEY PERFORMED AS MEMBERS OF THE AUXILIARY STAFF WERE NOT OF A TRANSITORY NATURE , IN OTHER WORDS THAT THEY WERE PERMANENT COMMUNITY PUBLIC SERVICE DUTIES .
13 IN THE ABSENCE OF ANY PROVISION IN THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES DETERMINING MEANS OF PROOF IT MUST BE STRESSED THAT THE APPLICANTS ARE ENTITLED TO DEMONSTRATE BY ANY CONCLUSIVE MEANS THAT THEY PERFORMED PERMANENT COMMUNITY PUBLIC SERVICE DUTIES . IN PARTICULAR , WHILST THE FACT THAT THE DUTIES PERFORMED BY A PERSON DURING THE PERIOD WHEN HE WAS CLASSIFIED AS A MEMBER OF THE AUXILIARY STAFF WERE IDENTICAL TO THOSE PERFORMED AFTER HIS APPOINTMENT AS A PROBATIONARY OFFICIAL OR AS A TEMPORARY EMPLOYEE , WHICH RELATE TO A POST CONTAINED IN THE LIST OF POSTS , IS WITHOUT DOUBT SUFFICIENT PROOF , IT MAY NOT BE REGARDED AS THE ONLY PERMISSIBLE MEANS OF PROOF .
14 MR TOLEDANO LAREDO STATED , INTER ALIA , THAT :
AFTER HIS DEPARTURE FROM DIVISION FED/3 ( DIRECTORATE-GENERAL VIII ), TO WHICH HE HAD BEEN ASSIGNED AS A MEMBER OF THE AUXILIARY STAFF , THE SAME DUTIES WHICH HE HAD PERFORMED WERE CARRIED OUT BY OFFICIALS ;
HIS CONTRACT AS A MEMBER OF THE AUXILIARY STAFF , WHICH TOOK EFFECT ON 6 OCTOBER 1964 , WAS EXTENDED INDEFINITELY FROM 6 OCTOBER 1965 ;
HE PERFORMED THE SAME DUTIES THROUGHOUT THE PERIOD DURING WHICH HE WAS CLASSIFIED AS A MEMBER OF THE AUXILIARY STAFF .
15 MR GARILLI STATED , INTER ALIA , THAT :
THE DEPARTMENT TO WHICH HE WAS ASSIGNED AS A MEMBER OF THE AUXILIARY STAFF ( DIRECTORATE-GENERAL I/D/3 ) STILL EXISTS AND THE DUTIES PERFORMED THERE ARE , MUTATIS MUTANDIS , THE SAME AS THOSE WHICH HE PERFORMED THERE ;
HIS CONTRACT AS A MEMBER OF THE AUXILIARY STAFF , WHICH TOOK EFFECT ON 1 SEPTEMBER 1964 , WAS EXTENDED INDEFINITELY FROM 1 SEPTEMBER 1965 ;
HE PERFORMED THE SAME DUTIES THROUGHOUT THE PERIOD DURING WHICH HE WAS CLASSIFIED AS A MEMBER OF THE AUXILIARY STAFF .
16 THE APPLICANTS ' ALLEGATIONS , WHICH HAVE NOT BEEN CONTESTED BY THE COMMISSION , CLEARLY SHOW THAT THE DUTIES PERFORMED BY MR TOLEDANO LAREDO AND MR GARILLI WERE NOT OF A TRANSITORY NATURE AND CORRESPONDED TO DUTIES PERFORMED BY OFFICIALS .
17 THE URGENT NATURE OF THOSE DUTIES REFERRED TO BY THE COMMISSION DOES NOT ALTER THE FACT THAT THEY ARE PERMANENT DUTIES ; IT MAY JUSTIFY THE ENGAGEMENT OF AN EMPLOYEE UNDER A CONTRACT FOR AUXILIARY STAFF ONLY IF IT IS PROVED THAT SUITABLE POSTS PROVIDED FOR IN THE BUDGET WERE NOT IMMEDIATELY AVAILABLE AND THE COMMISSION HAS NOT PROVIDED SUCH PROOF IN THE PRESENT CASE .
18 IT MUST THEREFORE BE CONCLUDED THAT THE APPLICANTS HAVE BEEN ABLE TO PROVE THAT DURING THEIR PERIODS OF SERVICE AS MEMBERS OF THE AUXILIARY STAFF THEY PERFORMED WELL-DEFINED , PERMANENT COMMUNITY PUBLIC SERVICE DUTIES FOR WHICH POSTS WERE AVAILABLE IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THE INSTITUTION EMPLOYING THEM .
19 IN VIEW OF THE FOREGOING CONSIDERATIONS THE COMMISSION ' S DECISION OF 1 DECEMBER 1980 MUST BE ANNULLED , IN SO FAR AS IT DOES NOT RECOGNIZE FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME MR TOLEDANO LAREDO ' S PERIOD OF SERVICE AS A MEMBER OF THE AUXILIARY STAFF FROM 6 OCTOBER 1964 TO 5 OCTOBER 1965 AND THE COMMISSION ' S DECISION OF 17 NOVEMBER 1980 REFUSING TO RECOGNIZE FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME MR GARILLI ' S PERIOD OF SERVICE AS A MEMBER OF THE AUXILIARY STAFF FROM 1 SEPTEMBER 1964 TO 31 MARCH 1967 MUST ALSO BE ANNULLED .
COSTS
20 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE COMMISSION HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE COMMISSION ' S DECISION OF 1 DECEMBER 1980 , IN SO FAR AS IT DOES NOT RECOGNIZE FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME MR TOLEDANO LAREDO ' S PERIOD OF SERVICE AS A MEMBER OF THE AUXILIARY STAFF FROM 6 OCTOBER 1964 TO 5 OCTOBER 1965 , AND THE COMMISSION ' S DECISION OF 17 NOVEMBER 1980 REFUSING TO RECOGNIZE FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME MR GARILLI ' S PERIOD OF SERVICE AS A MEMBER OF THE AUXILIARY STAFF FROM 1 SEPTEMBER 1964 TO 31 MARCH 1967 ;
2.ORDERS THE COMMISSION TO PAY THE COSTS .
