C-116/78

Commission of the European Communities, represented by its Legal Adviser, Denise Sorasio-Allo, acting as Agent, assisted by Daniel Jacob, of the Brussels Bar, 36 Rue de Practere, Brussels (1050), with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the new contract offered to the applicants in pursuance of Council Regulation No 2615/76 of 21 October 1976 (Official Journal No L 299, p. 1) and, accordingly, of the Commission's decision of 20 March 1978 rejecting their complaint or, in the alternative, for a declaration that the aforementioned Regulation No 2615/76 is invalid,

BELLINTANI v COMMISSION

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President P. Pescatore and A. Touffait, Judges,

JUDGMENT OF 5. 4. 1979 — CASE 116/78

In the meantime the Council of Ministers II — Conclusions of the parties Working Party on Staff Regulations introduced new provisions intended to abolish the categories of local and establishment staff, whose position was The applicants claim that the Court should: unfavourable as compared to that of their colleagues to whom the Staff Regu­ lations of Officials applied. Those provisions were given specific expression "Primarily: in Regulation No 2615/76. Emphasis was also laid on the need to safeguard Declare that the contract offered to the acquired rights which was also stressed by the Parliament in Resolution No C applicants is illegal and must therefore be 100, p. 38). annulled, since the applicants should have been graded in Category B with a contract for an indefinite period; Furthermore, on the initiative of Mr Tugendhat, the Commissioner respon­ sible for administration, a third ad hoc Accordingly, annul the decision of the Grading Committee set up by the Commission of 20 March 1978 rejecting Commission met on 9, 10 and 11 June their complaint; and on 1 July 1977. Its task was to consider "the problems of grading in Categories C and D raised by local or In the alternative: establishment staff in connexion with the implementation of Regulation No 2615/ 76". As regards the applicants the new Declare that Regulation No 2615/76 of rules provide for a five-year contract, 21 October 1976 has no legal basis as which is renewable if they enter regards employees previously appointed, Category B. since such a decision could not ignore the rights to grading according to the On 20 July 1977 the applicants received duties performed and the rights pre­ a letter from Mr Hannaert, Head of the viously acquired to a contract for. an Personnel Division, offering them the indefinite period; new contract.

The applicants justify the admissibility of (a) Facts their action as regards both the time- limit and their interest in bringing proceedings by referring to the fact that In their statement of the facts the they are entitled to contest a contract applicants emphasize the error which which they have signed. they consider to have been made by the administration on their recruitment, since it should have been compelled by their The defendant replies by recalling, first, qualifications to classify them in that under the terms of Article 4 of the Category; B. Thus, injury was already Conditions of Employment of Other suffered by the applicants when the new Servants (before it was amended by Regu­ rules came into force. Furthermore, since lation No 2615/76) establishment staff at the result of the new rules is to replace a the Joint Research Centre are staff contract for an indefinite period by a occupying posts in Category C or D contract for five years, the applicants whilst local staff are defined by the same suffer a double injury. article (in terms which are applicable) as "staff engaged according to local The applicants go on to describe the practice for manual or service duties, Commission's reply to the complaint assigned to a post not included in the list through official channels as constat non of posts appended to the section of the possumus and to. refute the Commission's budget relating to each institution and arguments by stating that what was paid from the total appropriations for the involved in this instance was an purpose under that section of the integration procedure and that for that budget". reason the case-law of the Court referred to by the Commission (Case 28/72, Tontodonati v Commission of the In the light of the mandatory limits on European Communities, [1973] ECR 779; the list of posts relating to the Case 189/73, Van Reenen v Commission aforementioned Conditions of Em­ of the European Communities [1975] ployment the administration of the ECR 445, Case 77/70, Prelle v Centre at Ispra engaged a number of Commission of the European members of the sun under the rules Communities, [1971] ECR 561), was governing local staff. Entry into the inapplicable. On the contrary the ranks of the establishment staff was, case-law for the year 1963 (Joined Cases therefore, only possible in Category C. 20 and 21/63, Maudet v Commission of That was in fact the aim of the ad hoc the European Economic Community, working party which submitted a report [1964] ECR 113, Case 102/63, Boursinv on 10 March 1976. The Commission also

However, in their reply the applicants As regards possibilities of promotion, emphasize that even if the whilst it is true that Article 92 of the "recommendations" of the working Conditions of Employment of Other party concerning the equivalence of the Servants is repealed opportunities for technical qualifications "had no binding promotion are nevertheless available to force", they have been followed. They the applicants, since they are covered by also state that the duties performed by all the "General provisions to give effect to nine attach "indisputably to Category B the procedure for promoting staff paid and that in addition they "are engaged from research appropriations" contained in work relating to the infrastructure in "Administrative Bulletin No 197" of without being involved in a specific 28 April 1978, pp. 22 to 25 (annexed by research programme". In that connexion the defendant) as a result of Article 9 of and in order to support their reply the those provisions. applicants produce in Annex I the record sheets describing their duties. They also stress their position, which ought to have been regularized at the same time as that of the seven employees who were (b) Law promoted to Category B just before the new regulation was adopted. In addition, In support of their application the they express reservations concerning applicants have put forward nine both the manner in which the selection principal submissions, which may be was made — which they consider "too summarized in the form of seven, since hasty" — and the composition of the they pursue only seven of them. selection committee, on which both sides were not equally represented. What is more, the nine employees in question no longer have even a possibility of (1) Infringement of Annex IB to the promotion available, since Article 92 of Staff Regulations the Conditions of Employment of Other Servants, which governs promotion, is repealed by Regulation No 2615/76. The applicants, who consider that they have "proved", through their statement In its rejoinder the defendant is anxious of the facts, that they performed the to recall the exact role of the various duties of laboratory technicians, by committees and, in particular, to make it reference to the excellence of their clear that they only express opinions. It qualifications, the record sheets and a

The Commission contests the reference to the letter from Mr Hannaert, "which (2) Discrimination between employees in does not acknowledge" a right to classi­ the same career bracket fication in Category B but merely recognizes "idoneita", that is, "eligibility or fitness to enter that category, subject to observance of the procedures provided The applicants consider that they have for in respect of such a change of been the victims of "discrimination", category". Moreover, Annex IB to the which they justify by reference to Article Staff Regulations, which is in fact 5 (3) of the Staff Regulations and to "a applicable in this case, does not place all universal principle of law established in the laboratory technicians in Category B, the labour laws of all the Member States since the term "laboratory technician" is of the Community, to the effect that no also applied to laboratory staff classified contract may give rise to such discrimi­ in Grade C3. Thus, the principle of nation". Although Article 10 of the correspondence between the basic posts Conditions of Employment of Other and career brackets of employees in the Servants does not expressly refer to scientific and technical services Article 5 (3) of the Staff Regulations the established by that annex has been applicants nevertheless maintain that respected. "discrimination" cannot be permitted between members of the temporary staff and points out, in particular, that seven employees were permitted to enter While accepting the argument of the Category B with a contract for an defence as regards the question of indefinite period "just before the entry "idoneita" the applicants consider that "it into force of the new rules" at which would be improper and a misuse of time their position was identical to that powers to assure a person that he is of the applicants. The applicants also rely eligible for the higher career bracket if on the recognition of acquired rights, as by the adoption of a contract as a referred to in the minutes of the meeting member of the temporary staff (for of the Working Party on the Staff Regu-

To that the applicants reply that the "discrimination is so obvious that no The defendant disputes the applicants' further evidence is required". They analysis of the situation. It maintains that repeat that their position was identical to the employees in question were that of the seven employees who were promoted to the status of officials in promoted just before the new regulation Category B and thereby acquired a was implemented. To prove the existence "position governed by the Staff Regu­ of that discrimination the applicants refer lations independent of any contractual to the case of Mr Merli who, although relationship and therefore incompatible placed last in the classification drawn up with the existence of a 'contract for an by the ad hoc committee, was selected in indefinite period'". It also rejects the preference "to his colleagues who were argument relating to the application of placed before him on the list". Article 5 (3) of the Staff Regulations, since that provision deals only with the conditions of recruitment and service career of officials, and temporary staff They also claim that the Commission is cannot be likened to officials. As regards in error in arguing that two groups the "universal principle of law" referred existed, namely officials and es­ to by the applicants, the defendant tablishment staff. They state that "after doubts its very existence, having regard the cases of seven of the employees were dealt with there still remained nine to the very imprecise manner in which it is formulated. In any event, it would not others whose positions were identical, be applicable since the discrimination namely, the nine applicants". At that alleged to exist is between employees on moment, therefore, no distinction could be drawn between officials on the one a contractual basis and officials. Finally, "on a general level the defendant does hand and employees on a contractual not see in what way the applicants have basis on the other, but in all seven plus suffered discrimination", since the recruit­ nine employees in the scientific and technical service who had to be classified ment of the employees in question as officials in Category B "was not vitiated before the new regulations entered into force. by any irregularity as is accepted by the applicants, who have not sought the annulment of the recruitment decisions".

The defendant considers that the argument that the applicants suffered (3) Liability for error and the failure of discrimination when the seven other the administration to provide assistance employees were promoted "is in­ admissible, since the applicants did not lodge either a complaint or an The applicants "claim" that the application within the prescribed time administrative authority must ac­ against the decisions to appoint them". knowledge that its classification of them Contrary to the statements made by the was erroneous. To that end they produce applicants the Court may be seised of an in Annex I to their application a application by an employee who claims document drawn up by a working party the status of a member of the set up by the administration of the Joint establishment staff or of an official (vide Research Centre, which states that "the Case 65/74, Porrini and Others v The working party agrees unanimously that European Atomic Energy Community and all technicians engaged in the future shall Comont S.p.A. and Bellintani and Others be classified in Category B …". Since, v The European Atomic Energy therefore, the administration cannot take Community and Cemi S.p.A., [1975] ECR refuge in "ignorance of the facts and 319). It is therefore only as an alternative consequences" it is responsible for their submission that the Commission repeats present situation. The applicants also that the seven employees in question criticize the failure of the administration were not "selected" by the ad hoc to provide assistance "in accordance with Grading Committee set up by Mr Article 25 of the Staff Regulations". Commissioner Tugendhat, but were appointed officials within the context of The Commission emphasizes that the the annual procedures for promotion in applicants freely accepted their contrac­ application of Article 9 of the Conditions tual position and brought no action of Employment of Other Servants. Those against their classification. What is more, employees were therefore not appointed this application is "clearly out of time". members of the establishment staff and The defendant describes the document then officials in Category B at one and produced by the applicants in Annex I to the same date and in one and the same their application as a "working measure. The Commission maintains that document containing certain con­ the applicants put forward no evidence siderations and aspirations" rather than to prove that the 'Tugendhat as a "directive" drawn up by the Committee" failed to respect the administration, as is claimed by the

applicants. Such a document has, the Council of their case and, thus, failed therefore, no binding effect on the to fulfil the "Fursorgepflicht" [duty to administration and cannot prevail over provide assistance] existing under Annex IB to the Staff Regulations, which German law, which is acknowledged by was in force when the applicants were Article 24 of the Staff Regulations. engaged. As regards the alleged failure of the administration to provide As regards the inadmissibility of the assistance the defendant points out, first, action regarding the unlawful nature of that the applicants do not indicate in the "errors" on the part of the what way the administrative authority administration, the defendant refers to its failed in its duty to provide assistance observations on the preceding point. It (which exists by virtue of Article 24 of goes on to state that differences exist the Staff Regulations and not Article 25 between the conclusions reached by the as stated by the applicants) ■ and, 1964 working party and Annex IB to the secondly, that Article 24 does not require Staff Regulations. The former pro­ the administration "to watch over the nounced itself in favour of the "simple career" of its employees but rather to abolition of categories" and the recruit­ facilitate their vocational training so that ment of laboratory technicians in Grade their careers may progress". That B 5/1, whereas the latter divided the submission of the applicants is therefore staff of the scientific and technical without any basis either in fact or in law. services into categories and grades and placed the laboratory technicians in Cate­ gories B and C. As regards the alleged Nevertheless, the applicants re-state their failure to provide assistance, the views that the minutes of the meeting of defendant feels that by acknowledging the working party which met in 1964 are that the applicants are eligible to enter not simply a catalogue of aspirations but, Category B should the occasion arise on the contrary, formulate "directives" and by safeguarding their chances of which "have been implemented as far as promotion (vide the statement of the possible" and, what is more, do not facts by the defendant), it has fulfilled its result in any contradiction as regards the obligation. application of Annex IB to die Staff Regulations, since they "coincide with it in every particular".

The defendant recalls that Regulation No Rome, which "enable the Court to 2615/76 also applies to the staff in consider, even after the expiration of the employment before its entry into force period for bringing proceedings, whether and repeats that the ad hoc Working a Council regulation infringes any rule Party on "Falsi Agenti Locali Diplomati" of law". As regards the substance they can only express aspirations which are rely on two "general principles", namely, not binding on the administration. It was "the prohibition of discrimination" and therefore impossible for the alleged "equal pay and conditions for equal acquired rights to be "recognized" by work". Those two principles have not the ad hoc Working Party. been observed, since the employees who were promoted to Category B were also "Falsi Agenti Locali Diplomati" and "in the much-quoted working party the auth­ The applicants point out once again "that orities had acknowledged that the they had qualifications which ought to position of all the members of that group have compelled the administration to was the same".

JUDGMENT OF 5. 4. 1979 — CASE 116/78

6 July 1977 from the Head of the nation occurs on the promotion of the Personnel Division, which is quite seven to Category B, which means that definite on that point. (The circular is the defendant's argument, which produced in Annex VI to the distinguishes between officials who were application.) formerly on the establishment staff on the one hand and establishment staff on The Commission considers that far from the other, is without foundation. While being absurd the limitation on the length agreeing in principle with the reasons of service is fully justified by virtue of given by the Commission in favour of a the duration of the research contracts. five-year contract for Categories A and B the nine applicants produce evidence However, the applicants maintain that showing that they perform infrastructure the application of that new regulation duties and that they cannot therefore be against the background of the third involved in the principle of mobility

mission). As regards the argument that the applicants — who are laboratory technicians (infrastructure) — cannot be (7) Application of the principles laid involved in the principle of mobility, the down by the Court in the course of Commission considers that "it clearly cannot be contested that the size and integration procedures type' of infrastructure of a research That submission is based on the need to centre are closely linked to the research programmes carried out". apply to the present case the case-law laid down by the Court in the context of the integration procedures.

BELLINTANI v COMMISSION

JUDGMENT OF 5. 4. 1979 — CASE 116/78

Decision

1 The application, which was lodged by nine employees who at first were recruited as local staff by the Joint Research Centre at Ispra and who sub­ sequently accepted classification either in Category C for an indefinite period or in Category B for a renewable period of five years in accordance with the provisions of Regulation No 2615/76 of the Council of 21 October 1976 relating to the Conditions of Employment of Other Servants of the European Communities (Official Journal No L 299 of 29 October 1976, p. 1), requests the Court to declare, principally, that the new contract between them and the administration is "unlawful and must therefore be annulled, on the ground that the applicants were entitled to be classified in Category B with a contract for an indefinite period" or, in the alternative, that Regulation No 2615/76 "has no legal basis, as regards employees previously appointed".

2 The applicants, all of whom have a technical qualification, were recruited as local staff in accordance with the administrative practice applied until the entry into force of Regulation No 2615/76, which reorganized the conditions under which laboratory technicians were in future to be recruited for the Ispra Centre, as were seven other laboratory technicians, six of whom entered the ranks of the establishment staff on 30 March 1976 and were subsequently promoted and established as officials in Category B on 27 October 1976.

3 In support of their conclusions the applicants put forward a series of grounds of complaint which, for the purpose of clarity, should be regrouped into six principal submissions, which will be examined in turn.

9 However, Article 2 (1) of Regulation No 2615/76 provides that the regu­ lation shall be applicable to local staff and paragraph (5) of that article similarly provides that the contract of any member of the local staff who does not accept within six months the offer made by the administration shall be terminated.

10 Accordingly, Regulation No 2615/76 is applicable to the applicants, as it is to all members of the local and establishment staffs who were in the service of the Community on its entry into force.

11 In a third submission the applicants maintain that before the entry into force of Regulation No 2615/76 their position was the same as that of the members of the local staff who were subsequently made officials in Category B, so that there was discrimination as between them and those promoted.

12 The appointment of those employees as establishment staff and their sub­ sequent promotion as officials to Category B in the budgetary posts available has never been contested and can therefore no longer be submitted for review by the Court of Justice.

13 In those circumstances the applicants are wrong to claim the existence of possible discrimination between officials on the one hand and local staff on the other.

JUDGMENT OF 5. 4. 1979 — CASE 116/78

20 It should also be noted that the contracts of employment in question are renewable.

21 Accordingly, it appears that Regulation No 2615/76 is especially adapted to the employment of staff who perform duties calling for scientific and technical qualifications and who are paid from appropriations in the research and investment budget.

22 In a sixth submission the applicants maintain that the real aim of Regulation No 2615/76 was to carry through an integration procedure and that the

BELLINTANI v COMMISSION

"Tugendhat Committee", which was set up by the Commission in 1977 for the implementation of that regulation, is in fact nothing more than an establishment board.

23 However, Article 2 of Regulation No 2615/76 cannot in any way be regarded as providing the means for temporary staff to become officials and the measures provided for by that article are for that reason very different from the procedures relating to integration described in Articles 102 and 107 of the Staff Regulations.

30 Furthermore, Regulation No 2615/76 offers them the opportunity of obtaining renewable contracts for five years in Category B.

JUDGMENT OF 5. 4. 1979 — CASE 116/78

31 That period has already been considered to be logical.

32 Furthermore, opportunities for promotion do exist.

33 Therefore the alternative conclusions must also be dismissed.

Costs

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Mackenzie Stuart Pescatore Touffait

Delivered in open court in Luxembourg on 5 April 1979.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber