C-65/74
ECLI:EU:C:1975:38
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JUDGMENT OF THE COURT OF 11 MARCH 1975 1
Porrini and others v the European Atomic Energy Community and Comont S.p.A. and Bellintani and others v the European Atomic Energy Community and Cemi S.p.A. (preliminary ruling requested by the Giudice del Lavoro, Varese)
Case 65/74
Summary
1. Officials — Disputes with the administration — Persons claiming the status of officials or of servants other than local staff — Jurisdiction of the Court (EAEC Treaty, Article 152)
2. Officials — Service relationship with the Community — Creation — Decision of the national court — Cannot produce such an effect
1. Article 152 of the EAEC Treaty must 2. The basis of the service relationship be interpreted as meaning that it between the Community and officials applies not only to persons who have or servants other than local staff the status of officials or of servants cannot reside in a decision of a other than local staff but also to national court. persons claiming that status.
In Case 65/74
Reference to the Court of Justice under Article 150 of the EAEC Treaty by the Giudice del Lavoro (Labour Commissioner) at the Tribunale di Varese for a preliminary ruling in the actions pending before that court between
PORRINI AND OTHERS
and
THE EUROPEAN ATOMIC ENERGY COMMUNITY AND CCOMONT S.P.A.
1 — Language of the Case: Italian.
JUDGMENT OF 11. 3. 1975 — CASE 65/74
and, in the second action,
between
BELLINTANI AND OTHERS
and
THE EUROPEAN ATOMIC ENERGY COMMUNITY AND CEMI S.P.A. on the inter pretation of Article 152 of the EAEC Treaty and its application to persons who are not officials of the European Communities,
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe (Rapporteur), Judges,
Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
The judgment making the reference and Centre of Euratom (JRC) are, under a the written observations submitted under contract for services, in part entrusted to Article 21 (2) of the Statute of the Court local firms. of Justice of the EAEC may be 2. Article 33 of Annex F to the summarized as follows: Agreement between Euratom and the Italian Government for the establishment
I — Facts of the Ispra centre places the Commission under an obligation to 1. The maintenance and cleaning of ensure that, in contracts with firms for buildings and installations on the works or services, the staff employed by premises of the Joint Nuclear Research the contractor concerned shall receive
PORRINI v EAEC AND COMONT
rates of pay, social security benefits and (b) in the alternative, declare them to be working conditions as favourable as establishment staff of Euratom in those applied for work of the same Class A, Group 2, Step 3; nature in industries in the region (c) in the further alternative, and concerned. should the contracts for services not be held to be illegal, order Euratom 3. Italian Law No 1369 of 1960, and, jointly with it, the firms under promulgated after the conclusion of the contract to it, to pay to the said Agreement, prohibits such contracts plaintiffs, with retroactive effect, when they are for the provision of pursuant to the above-cited Law, the labour only in which the contractor salary and emoluments equal to employs capital, machinery and those received by officials or, equipment provided by the party which alternatively, by the establishment awarded the contract.
In the case, staff in the categories mentioned; however, of contracts which are not for the provision of labour only the Law (d) in the further alternative, declare provides that the party awarding the that they are local staff. contract and the contractor shall be 6. Euratom, for its part: under a joint and several obligation to pay workers employed by the latter at — objected that the Italian court had no rates which are as favourable as those jurisdiction in respect of claims (a) enjoyed by staff employed by the and (b) which it contended fell employer awarding the contract. within that of the Court of Justice since engagement as an official must
4. When the Law came into force, it be based on an instrument of caused a union dispute at the Ispra appointment, for which no judicial establishment. The workers in the Cemi decision may be substituted; and Comont firms maintained that the — raised a preliminary objection as to Law applied to the JRC; that the the substance, stating that Law No contracts for services between their 1369 was not applicable to it since it employers and Euratom were for the related only to contractors and since provision of labour only; that the neither the Community nor the JRC capital, machinery and equipment were answered to this description in view the property of Euratom; and even that, of the fact that it was a as the workers were in fact part of the non-profit-making body and, conse administrative structure of the JRC, quently, lacked an essential element these contracts were fictitious. in the activities carried out by an The Commission rejected this contention undertaking; and announced that it intended to — as regards claim (c), invoked the engage the said staff by stages. Agreement between Euratom and the Italian Government providing for
5. In May 1973, 43 employees of the exemption from Law No 1369, and abovementioned firms brought their respective employers and Euratom — as regards claim (d), alleged want of before the Tribunale di Varese claiming any substantial interest on the part of that the court should: the plaintiffs, since, in fact, the latter already received the emoluments (a) declare that by reason of Law No applicable to local servants under the 1369 they were officials of Euratom abovementioned Agreement. in Categories C2 and C3, with all the consequences which that implies, 7. If and in so far as they were from the time when they started concerned, the Cemi and Comont firms work; supported the conclusions of Euratom.
JUDGMENT OF 11. 3. 1975 — CASE 65/74
8. After joining the two cases the Community and of the Staff Labour Commissioner of the Tribunale Regulations of Officials and Servants di Varese delivered a judgment on 18 of the Community, entitled, on the March 1974 in which he: basis of recognition that a service relationship in fact exists, to — dismissed claim (c) as unfounded on establish a direct service relationship the ground that on the one hand between the Community and Law No 1369 did not apply to persons who, though apparently Euratom, which was an institution employed by firms of contractors to which was not an undertaking, and the Community, work on the latter's on the other hand because the said premises and, according to what the Agreement contained a provision plaintiffs in these proceedings have creating an exception to Law asserted and propose to prove, use No 1369; materials supplied by the Com — dismissed claim (d) as unfounded as munity for their work and act under the applicants had not proved any the direction of its officials? The substantial interest; judge making the reference has — ruled that, notwithstanding that Law asked the Court, in connexion with No 1369 did not apply to Euratom, this last question, not to overlook this did not render claim (a) and (b) the fact that, in the present case, one inadmissible if account were taken of further result is that workers who
the general principles governing may have different qualifications but misrepresentation under which a who in practice work side by side in simulated and fictitious situation the same establishment, and are must be ignored in favour of the real employed on the same or situation which it conceals. comparable duties, are remunerated differently according to whether 9. The said court judged it necessary to they are directly employed by seek a preliminary ruling under Article Euratom as officials or establishment 150 of the EAEC Treaty from the Court staff, or by undertakings who are of Justice on the following questions: contractors to the EAEC.
(a) Is Article 152 of the Treaty to be 10. After this judgment was delivered interpreted as meaning that disputes and in accordance with its declared between the Community and intention, the Commission completed the persons who, not being its servants, process of engaging the workers nevertheless claim to be such, fall concerned with the result that all the within the jurisdiction of the Court plaintiffs in the main action are now of Justice? local staff. This does not deprive the proceedings of their purpose, since the (b) Must the service relationship main claims are concerned with between the Community and officials and servants be invariably obtaining, retroactively, the status of officials or establishment staff. based on an instrument of appointment, or may that instru ment be replaced by a decision of a judicial authority that a specific II — Procedure service relationship exists de facto? (c) Finally, if the answer to the previous The judgment making the reference was question is in the affirmative, is the received at the Court Registry on 12 Court, under the rules and general September 1974. principles of the Treaty establishing Pursuant to Article 21 (2) of the Statute the European Atomic Energy of the Court of Justice of the EAEC,
PORRINI v EAEC AND COMONT
written observations were lodged on is true that the tendency of the case-law behalf of the Commission of the of the Court is to leave it to the national European Communities by G. P. Alessi, court to determine the relevance of the a member of its legal department, acting questions referred. But, under Article as Agent, and for the plaintiffs in the 150, a request to the Court of Justice for main action, by A. Ulgheri of the Milan a preliminary ruling is made expressly Bar and A. Merlo of the Varese Bar. subject to the condition that the interpretation of Community law which Upon hearing the report of the the Court has been requested to give is Judge-Rapporteur and the views of the Advocate-General the Court decided that necessary to enable the court referring the matter to give judgment. It there was no need for any preparatory necessarily follows that if, under inquiry. Community law, the latter has no jurisdiction, it cannot give a decision on the substance of the case nor, consequently, can there be a reference to III — Summary of written observations the Court for a preliminary ruling on the substance. Otherwise the Court would submitted under be giving a preliminary ruling in advance Article 21 (2) of the of a judgment which, in exercise of its Statute of the Court exclusive jurisdiction, it might later be of Justice of the called upon to pronounce. EAEC
— The third question 1. The observations of the Commission As the court making the reference seems (a) Admissibility and interpretation of to take for granted that the dispute is the questions referred within the jurisdiction of the Court of Justice and ignores the essential purpose — The first question of a reference for a preliminary ruling, As an anwer that Article 152 is the way in which this question is inapplicable would not necessarily phrased also amounts to asking the mean recognition that the national court Court to pronounce judgment in had jurisdiction, the Commission takes advance in disregard of the channels the view that it is of more importance to provided for a direct application to the consider whether the national court has Court and before the right of appeal jurisdiction. through official channels has been exhausted. Moreover, the question seems to require application of Community law — The second question to a specific case rather than its The Commission believes that this interpretation in abstract terms. It is question should be answered only if, in therefore important to make the the anwer to the first question, the court admissibility of the question dependent making the reference is recognized as on whether the answer to the first having jurisdiction. Otherwise, the question recognizes the court making the question whether a judicial decision can reference as having jurisdiction; to make take the place of the instrument of it clear that any judicial decision which appointment cannot, by definition, be may be intended to take the place of an decisive in the proceedings before the instrument of appointment is not in any court making the reference since the case a decision of the Court of Justice judicial decision in question can, should but that of the national court; and to the need arise, only be given by the separate the genuine questions of Court of Justice of the Communities. It interpretation of Community law from
JUDGMENT OF 11. 3. 1975 — CASE 65/74
the references to the concrete aspects of according to the case-law of the Court, the case. candidates in an external competition. But only at the cost of a very strained (b) Substance interpretation would it be possible to regard individuals who have no formal — The first question connexion with the Community, such as the plaintiffs in the main action, as This question concerns the applicability 'servants' or 'persons to whom these of Article 152 of the EAEC Treaty to disputes between the Community and Staff Regulations apply'.
In any case, the persons claiming to be officials or Court has jurisdiction under the third paragraph of Article 148 of the EAEC establishment staff (the court making the reference dismissed as unfounded Treaty, which lays down the general the claim to the status of local staff) and basis, as regards cases of failure to act, raises the question whether the national for supervision by the Court of the Community's administrative actions, since court does or does not have jurisdiction. the persons concerned can ask the Court The answer should be in the negative, to censure the Commission's attitude for
because international organizations have always withdrawn disputes arising out of having failed to take a decision employment from the jurisdiction of the appointing them as officials. The Commission submits that, if the Court national court and, depending on the degree to which they have been regards the difficulty presented by the institutionalized, provided for them to wording of Article 152 as insurmountable be dealt with by special judicial bodies it should, on the basis of general law, such as the administrative courts of the under the third paragraph of Article 148 United Nations or of the International of the said Treaty, affirm its own Labour Office, or by ad hoc internal jurisdiction in the type of dispute committees, as in the case of the Council referred to by the Varese court; the of Europe, with the object of preventing Commission accordingly takes the view that the answer to the first question any interference, however indirect, in
should be in the affirmative. It takes the their internal organization by the Member States. The absence of ad hoc liberty, moreover, of recalling that, if, on bodies does not mean that the the ground that Article 148 applies, the jurisdiction of the national courts, which answer should be in the negative, it would appear to be necessary to state is excluded by the immunity granted to the organizations, is restored to them but that, under Community law, the national court has no jurisdiction in disputes of that any disputes are submitted to review
this kind. by the administrative authority of the institution either by means of an appeal to a superior officer or to the author of — The second question the act complained of. The answer on the subject of officials As far as the public service is concerned, must be in the negative. Only persons the EEC and EAEC Treaties provided who have been the subject of an separate and comprehensive judicial appointment can be regarded as officials, protection the responsibility for which which excludes any de facto employment was reserved to the jurisdiction of the capable of being legally validated by a
Court. Article 152 of the EAEC Treaty decision of a court. The idea of the de applies to disputes between the facto status of official, developed by Community and its servants, namely administrative law, consists in recogniz officials, other servants, (excluding local ing, within well-defined limits, the staff), former officials (on questions such validity of actions carried out in that as pension arrangements), other persons capacity but has no legal effect on the affected by these arrangements and, relationships between the administration
PORRINI v EAEC AND COMONT
and those concerned. The application of It is not possible, therefore, for such a this principle to officials is embodied in court to create a public service the case-law of the Court. relationship by substituting for the As regards establishment staff, however, contracting parties a rule of its own as they are generally engaged on contract. sometimes occurs in private law. As in They are established after a the case of officials, the engagement of a probationary period (Article 90 of the member of the establishment staff, which Conditions of Employment of other is characterized by the conclusion of a servants of the Communities). But the contract and by the instrument of effect of Articles 87, 91, 92, 93 and 97 of establishment, is within the exclusive the Conditions of Employment, which province of the administrative authority. refer to the corresponding articles appli The Commission accordingly submits cable in the case of officials, is that, that if the Court sees fit to rule on this despite the fact that the relationship is question, its answer should be in the based on a contract, the concept of
negative. establishment staff is, so far as its legal effects are concerned, assimilated to that of officials and does not therefore fall — The third question under private law. Establishment can take place only as a result of an adminis In view of the nature of the replies trative act of the Community; which it has suggested that the Court consequently, the contract does not should give to the first two questions, seem able in itself to create an the Commission regards the third unqualified appointment.
The real question as pointless. Nevertheless, the significance of this contract under the Commission feels bound to express regulations governing the relationship is therefore unclear. If it were of decisive doubt whether there is any general importance, it would, under private principle common to all legal systems international law and, in particular, on which, according to the national court, renders void the relevant contracts for the basis of association with the place where the contract was concluded and services and makes it necessary for the was to be performed, necessarily to lead court to create a direct relationship in to the application, as an alternative, of law between the party awarding the different national legal systems contract and the workers employed by depending on the staff concerned and, the contractor on the ground that the consequently, to an absence of uniform said contracts involved a legal fiction or, rules governing the relationship, but as to be more precise, that they introduced the said staff must always fill posts a fictitious intermediary; this principle provided for in the Community's was simply adopted without any detailed list of posts, this would be substantial variation by Italian Law.
unacceptable. Contracts of this type are in force in all Member States with the exception of Local staff provide evidence a contrario in support of this argument, for they are Italy (and perhaps in Italy, too, except not intended to fill posts included in the when Law No 1369 applies.) Community's detailed list of posts; their In any case, proof has not been relationship, a contractual one, with the forthcoming that the duties performed Community, is governed by the relevant by the plaintiffs in the main action national legislation, and disputes arising correspond to those carried out by therefrom are a matter for the national officials or by establishment staff, and the courts (Articles 79 to 81 of the fact that they were recently engaged as Conditions of Employment.) local staff may indicate the contrary.
JUDGMENT OF 11. 3. 1975 — CASE 65/74
2. Observations of the plaintiffs in the that between the Italian Government and main action Euratom (Article 32 cited above), the local courts are made responsible for For many years the staff of undertakings settling disputes arising out of the service providing services have been paid at a relationship, it is before them alone that substantially lower level for the same proceedings may be brought. The fact work than staff directly employed by the that the administration does not Community organization. The defendant recognize the workers as servants or firms formed purely fictitious bodies to officials is irrelevant. act as an unnecessary and illegal intermediary between their employees and Euratom, which is their real — Second question employer. There may in certain cases be de facto On the question of jurisdiction, it is service relationships. If the Commission expressly provided under Article 32 of refuses to grant the right to the title Annex F to Law No 906 of 1 August claimed by someone who showed that he 1960 that: 'Any dispute arising out of fulfilled all the necessary conditions for the relationship of master and servant it, it could be conferred on him by a shall be settled in accordance with the judicial decision in the same way and on relevant provisions of Italian Law'. The the same grounds as those available to present case is not, as Euratom contends, an individual in defending his rights concerned with creating a de jure against the State. relationship but with securing specific ally for the said workers an economic and — The third question legal status equal to that enjoyed by staff directly employed by the Community The Court of Justice must not be denied and doing the same work. jurisdiction to establish whether the conditions necessary for the enjoyment Even if this came within the jurisdiction of the rights prescribed for the purpose of the Court of Justice, it would have to of performing certain duties are fulfilled. apply Italian legislation because Euratom But the Italian courts must rule on the is in fact regarded as an undertaking right of the plaintiffs in the main action within the meaning of Law No 1369. to be given a new classification, to receive arrears of remuneration and to — First question have a direct relationship with the Community established for them. Article 152 of the EAEC Treaty, which provides that the Court of Justice shall The oral observations of the plaintiffs in have jurisdiction in any dispute between the main action, represented by A. Ulgheri, of the Milan Bar, and of the the Community and its servants, lays down that this jurisdiction shall be Commission, represented by its Agent exercised 'within the limits and under G. P. Alessi, were made at the hearing the conditions laid down in the Staff on 6 February, 1975. Regulations or the Conditions of The Advocate-General delivered his Employment'. It follows that when, opinion at the hearing on 25 February under a particular convention, such as 1975.
PORRINI v EAEC AND COMONT
Law
1 By judgment of 18 March 1974, which arrived at the Court Registry on 12 September 1974, the Labour Commissioner of the Tribunale di Varese applied to the Court for a preliminary ruling on the interpretation of Ar ticle 152 of the Treaty establishing the EAEC and on its application to persons who do not have the status of officials or servants of the European Com munities.
2 These questions were raised in the context of disputes relating to the according of recognition as Euratom officials or servants to employees of local maintenance and cleaning firms which had concluded contracts for services with the Joint Nuclear Research Centre established at Ispra.
3 It appears from the judgment making the reference that these workers, who are the plaintiffs in the main action, have protested against the fact that for many years, although doing the same work, they have not received the same treatment as staff directly employed by the Community, and that in their applications they have claimed the status of officials in Grade C3 or Grade C2 or of establishment staff in Class A Group 2 Step 3 with retroactive effect from the time when they started work.
4 The defendant in the main action has raised the objection that this claim is not within the jurisdiction of the national court because, in its view, it is a matter for the Court of Justice since engagement as an official must at all times be based on an instrument of appointment for which no decision of a court can be substituted.
5 The first question is whether, in these circumstances, Article 152 of the EAEC Treaty must be taken as meaning that disputes between the Community and individuals who, though not its servants, nevertheless claim to be so, come within the jurisdiction of the Court of Justice.
6 Article 152 provides as follows: 'The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and
JUDGMENT OF 11. 3. 1975 — CASE 65/74
under the conditions laid down in the Staff Regulations or the Conditions of Employment.'
7 The Staff Regulations cover 'officials' appointed under the conditions provided for therein.
8 The Conditions of Employment also apply on the one hand to 'temporary and auxiliary staff whose rights, which are similar to those of officials they define, and to 'local staff' (Title IV of the Conditions of Employment) whose conditions of employment are, under Article 79 (a), (b) and (c) determined 'in accordance with current rules and practice in the place where they are to perform their duties'.
9 Under the provisions of Title VII of the Staff Regulations, the Court has jurisdiction in any dispute in which officials are involved.
10 Under Articles 46, 73, 83 and 97 of the Conditions of Employment the provisions of Title VII of the Staff Regulations shall apply by analogy to servants other than local staff.
11 As the conditions of employment of officials and servants other than local staff are determined by the Staff Regulations or by the Conditions of Employment, disputes arising over these conditions are, under Article 152 of the EAEC Treaty, placed within the jurisdiction of the Court, whereas the conditions of employment of local staff are laid down in accordance with national law and may be the subject of proceedings before the national courts.
12 In the present case, the national court has already exercised jurisdiction as regards the plaintiffs' application to be recognized as local staff, and submits to the Court only a request for interpretation in respect of the plaintiffs' claim to be granted the rights reserved to officials and servants other than local staff.
PORRINI v EAEC AND COMONT
13 In these circumstances, as the rights in question are those recognized by the Staff Regulations, Article 152 of the EAEC Treaty must be interpreted as meaning that it applies not only to persons who have the status of officials or of servants other than local staff but also to persons who lay claim to this status.
14 The question has also been asked whether the basis of the service relationship between the Community and its officials or servants must at all times and invariably reside in an instrument of appointment or whether for this instrument there may be substituted a judicial decision, finding that on the facts there exists a particular service relationship.
15 In view of the answer to the first question, the reply to the second must be that the basis of the service relationship between the Community and its officials or servants other than local staff cannot reside in a decision of a national court.
16 In view of the answer to the second question, there is no need to consider the third.
Costs
17 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.
OPINION OF MR REISCHL — CASE 65/74
On those grounds,
THE COURT,
in answer to the questions referred to it by the Labour Commissioner of the Tribunale di Varese by his judgment of 18 March 1974 hereby rules:
1. Article 152 of the EAEC Treaty must be interpreted as meaning that it applies not only to persons who have the status of officials or of servants other than local staff but also to persons claiming that status;
2. The basis of the service relationship between the Community and officials or servants other than local staff cannot reside in a decision of a national court.
Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco
Pescatore Kutscher Sørensen O'Keeffe
Delivered in open court in Luxembourg on 11 March 1975.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 25 FEBRUARY 1975 1
Mr President, ought to be regarded as Euratom officials or as establishment staff and Members of the Court, should receive the appropriate remunera tion. There are two cases pending before the Labour Commissioner at the Tribunale These persons — meanwhile they have di Varese in which the main relief sought all become local staff within the meaning is a declaration that a number of persons of Article 79 to 81 of the Conditions of
1 — Translated from the German.