C-105/80

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail [Labour Tribunal], Brussels, for a preliminary ruling in the action pending before that court between 1 — Language of the Case: French.

JUDGMENT OF 25. 6. 1981 — CASE 105/80

H U G U E S DESMEDT, a clerical w o r k e r , residing in H e n n u y è r e s (Belgium),

and

COMMISSION OF THE EUROPEAN COMMUNITIES,

on the relationship between the status of a probationary official within the meaning of Articles 1 and 34 of the Staff Regulations of Officials of the European Communities and that of a member of the local staff within the meaning of Articles 4, 79, 80 and 81 of the Conditions of Employment of Other Servants of the European Communities,

The facts of the case, the course of service of the Commission of the the procedure and the observations European Communities in Brussels as a submitted in accordance with Article 20 member of the local staff to perform the of the Protocol on the Statute of the duties of a storekeeper in the Library Court of Justice of the EEC may be Division of the Translation, Documen- summarized as follows: tation, Reproduction and Library Direc- torate under a contract of employment (manual worker) signed on 12 August I — Facts and written p r o c e d u r e 1974 and concluded for a period of six months. Mr D e s m e d t ' scontract of On 19 August 1974 Mr Hugues employment as a member of the local Desmedt, a Belgian national, entered the staff was renewed on 13 February 1975

DESMEDT v COMMISSION

for an indefinite period. By an In his comments on the report, Mr amendment to the terms of his contract, Desmedt took the view that "the Mr Desmedí was affiliated, as from 1 assessments made do not reflect the true July 1976, to the "clerical worker" state of affairs" and pointed out that he scheme of the Belgian National Social had previously expressed the wish to be Security Office. posted to Brussels.

According to the report drawn up at the With that certainty, I accepted the post expiry of the probationary period which I was offered . . . ". pursuant to Article 34 (2) of the Staff Regulations on 6 June 1977 in relation to By letter of 20 March 1978, the Member the work carried out by Mr Desmedt in of the Commission with responsibility for his capacity as "an operator of peripheral staff matters notified Mr Desmedt of the units of computers at the Computer rejection of his complaint. That letter Centre," his initiative, sense of contained inter alia the following obser­ responsibility, speed in the performance vation: of his duties and punctuality were found to be inadequate. In the final part of "Your appointment as a probationary the report, Mr Desmedťs immediate official on 1 January 1977, which you superior recommended his dismissal on accepted, necessarily entailed the prema­ the ground that he did not appear to be ture termination of your contract of "motivated for the work in question employment governed by private law during his probationary period". since the status of a member of the local

JUDGMENT OF 25. 6. 1981 — CASE 105/80

"Is the status of a probationary official II — W r i t t e n observation sub- of the European Communities, subject to mitted to the C o u r t the Staff Regulations of Officials published in the Official Journal of the European Communities of 28 September 1972, C 100, pp. 5 to 32 and in Hugues Desmedt, the plaintiff in the main particular Article 34 (8) thereof, action, submitted observations which compatible or incompatible with that of a may be summarized as follows :

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(c) It is common ground that under In so far as, under the legislative Belgian law a contract of employment provisions of national law, the contract may be broken by the employer only if as a member of the local staff is he complies with certain procedures and suspended during the trial period as a by giving notice or paying appropriate probationary official, there is no compensation in lieu thereof. Belgian law incompatibility between the existence of also prohibits the conclusion of contracts the contract as a member of the local for a trial period following entry into staff, which is placed in abeyance, and service. In their decisions, however, the the status of a probationary official of courts have tempered that principle, the European Communities. taking the view that a contract for a trial period in a new post is permissible provided that during that trial period the pre-existing contract is merely The Commission, the defendant in the suspended, so that it again takes effect main action, points out in relation to the forthwith if the trial period in the new question submitted to the Court that the post proves to be abortive. only problem arising at Community level concerns the status of an official (Article 1 of the Staff Regulations) and that of a (d) Since Mr Desmedt was subject to member of the local staff (Article 4 of the status of a member of the local staff, the Conditions of Employment of Other his contract was governed exclusively by Servants). All references to Belgian law the provisions of Belgian law. His should be disregarded. The answer to the appointment as a probationary official question concerns only the rules of was not accompanied by any express Community law applicable to the premature termination of his contract as European public service. a member of the local staff. That contract therefore continued to exist in spite of his appointment and the change In this regard, the following observations of status resulting therefrom. should be made :

(a) According to the first paragraph Communities serving in Brussels". These of Article 4 of the Conditions of rules are expressly referred to in Article Employment of Other Servants, local 3 of every contract of employment staff, means staff "engaged according to concluded between the Commission and local practice". Title IV of the Con- a member of the local staff engaged to ditions defines the special conditions work in Brussels. applicable to local staff by stating that their conditions of employment, in particular as regards the manner of their engagement and termination of their (b) It follows from the case-law of the contract, their leave and their remune- Court that the conditions of employment ration are to be determined by each of officials and servants other than local institution in accordance with current staff are determined by the Staff Regu- rules and practice in the place where lations or by the Condtions of they are to perform their duties (Article Employment and that the disputes which 79), that as regards social security, the they occasion come within the exclusive institution is to be responsible for the jurisdiction of the Court whereas the employer's share of the social security conditions of employment of local staff contributions under current regulations are determined on the basis of national in the place where the servant is to law and are capable of forming the perform his duties (Article 80) and that subject-matter of proceedings before any dispute between the institution and a national courts. member of the local staff is to be submitted to the competent court in accordance with the laws in force in the That distinction is justified by the place where the servant performs his difference in nature between contracts duties (Article 81). Furthermore, under governed by private law to which a Article 2 of Regulation No 260/68 of the member of the local staff is a party and Council of 29 February 1968 laying the conditions of employment governed down the conditions and procedure for by public law which are applicable to applying the tax for the benefit of the officials and to temporary or auxiliary European Communities members of the staff. local staff are not liable to the tax in question. (c) It also follows from the case-law of the Court that the procedure for National law admittedly plays a decisive dismissing an official on the ground of part in determining the legal rules an unfavourable report at the end of the applicable to local staff. None the less, probationary period is governed by in formal terms, the conditions of Article 34 (2) of the Staff Regulations employment, in particular those and that a decision taken in accordance governing the engagement and dismissal with that provision cannot give rise to of such staff, are the subject of any responsibility on the part of the Community rules drawn up by each Commission in regard to dismissed institution. probationary officials.

under Article 34 (2). That provision ted by Raymond Baeyens, assisted by constitutes an additional manner in Jean-Marie De Smet of the Brussels Bar, which service may be terminated, within submitted oral argument and answered the meaning of Article 47, but coupled questions put by the Court at the sitting with a grant of specific compensation on 12 march 1981. normally equivalent to two months' basic salary. Mr Desmedt obtained such compensation for dismissal. Mr Desmedt pointed out that under Article 24 (b) of the Rules laying down the conditions of employment of local staff of the Commission serving in (d) The probationary period, which is Brussels, a contract for an indefinite compulsory under the Staff Regulations, period normally ends by written notice may not, from a logical point of view, of termination. That provision gave no have the effect of suspending a con- justification for holding that there was tractual relationship governed by private an implied termination arising as a result law which is broken solely because the of passing from a status governed by the person concerned becomes subject to a conditions of employment of local staff system of rules governed by public law, to the status of a probationary official, that is to say Community law, which the less so since under Belgian law a precludes the application of national transfer to another post in the service of private law. the same employer entails, during the trial period, the retention of the rights acquired in the previous post. This was confirmed by the fact that Mr Desmedt was recruited as an official following his (e) The question submitted by the participation in an internal competition Tribunal du Travail, Brussels, should be for which he would not have been answered as follows: eligible if his contract as a member of the local staff had been prematurely terminated beforehand. Finally, the fact that his engagement was considered to The status of an official of the European have taken effect on 12 August 1974 and Communities, whether probationary or to have continued, within the same established, is incompatible with that of a institution, beyond 1 January 1977, member of the local staff inasmuch as showed that there had been no termi- the relationship between the latter and nation of the contract of employment, his employer is contractual in nature and even by implication, but merely a accordingly subject to national law. termporary amendment of the contract rendering it subject to the contingency of a favourable report at the expiry of the probationary period.

3 It is apparent from the file on the case, including the personal file of the plaintiff in the main action, that he was engaged by the Commission as a member of the local staff in Brussels on 19 August 1974, initially for a period of six months. Upon the expiry of that period, the administration notified the plaintiff that it had decided to renew his contract for an indefinite period in spite of the fact that his performance was unsatisfactory. It also gave warning that there would have to be a considerable improvement in his work, failing which the administration would be obliged to reconsider his position and the continuance of his activities in the service of the Commission.

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4 The renewed contract of employment for an indefinite period was signed on 13 February 1975 by both parties. The service assessments in relation to the plaintiff drawn up in 1975 and 1976 show, albeit with some reservations, that his work was in general satisfactory.

5 At the time, the plaintiff participated successfully in an internal competition (COM/C/8/75) following which he was appointed on 7 January 1977, with effect from 1 January of the same year, as a probationary official in the capacity of clerical assistant in Grade C 5 and assigned to the Directorate General for Personnel and Administration in Luxembourg. An internal memorandum of 7 February 1977 states that "the contract as a member of the local staff under which Mr Hugues Desmedt was employed in the service of the Commission in Brussels has been terminated with effect from the evening of 31 December 1976". That memorandum was forwarded, inter alia, to the department in which the plaintiff was working.

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8 By a writ dated 15 December 1977, Mr Desmedt had meanwhile instituted proceedings before the Tribunal du Travail, Brussels, for an order requiring the Commission to pay him damages for breach of contract. In the document initiating the proceedings, he claims that the Commission should either have reinstated him in his former post or paid him damages in lieu of notice estimated at BFR 228 930, equivalent to six months' salary calculated by reference to his last salary.

9 In support of his application, Mr Desmedt states that his appointment as a probationary official merely suspended his contract as a member of the local staff and that the contract should therefore again have taken effect following his dismissal as a probationary official. He compares his situation to that of a worker under a contract of employment in the private sector who is assigned to new duties for a trial period and he requests the national court to provide him with the same degree of protection as that which the courts would afford him if the succeeding contracts had been concluded in the private sector.

10 The Commission points out that the effect of an appointment as a probationary official is to make the employee subject to the Staff Regulations and necessarily terminates his contract as a member of the local staff which is governed by the Conditions of Employment.

1 1 To resolve this dispute, the Tribunal du Travail has submitted the following questions to the Court:

"Is the status of a probationary official of the European Communities, subject to the Staff Regulations of Officials published in the Official Journal of the European Communities of 28 September 1972, C 100, pp. 5 to 32, and in particular Article 34 (8) thereof, compatible or incompatible with that of a member of the local staff, subject to the private law of national legislation, as published in the same Official Journal of 28 September 1972, C 100, p. 80, Articles 79 to 81, that is, in the present case, as regards Belgian legislation, Article 37 of the Law of 3 July 1978 and the former Article 14 of the Consolidated Laws of Employment?"

15 The situation might be different only where the administration takes an express decision to the contrary. It is necessary to add, moreover, that there is nothing to prevent the administration from reinstating in his former position, upon the expiry of the probationary period, a servant formerly subject to the Conditions of Employment but the post would then be a new one and thus there would be no resumption of the previous employment relationship.

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16 It should also be observed that although the probationary period undoubtedly involves a measure of insecurity for the probationary official, he is none the less protected against any arbitrary dismissal by the means of redress provided for in Articles 90 and 91 of the Staff Regulations. In comparative terms, his position in that regard is no more insecure than that of a member of the local staff who may be dismissed at any time for incompetence subject to compliance with the appropriate procedures and time-limits.

17 In the light of the above considerations, the answer to the question submitted should be that the status of a probationary official who is subject to the Staff Regulations and that of a member of the local staff who is subject to the Conditions of Employment are incompatible inasmuch as the acquisition by a member of the local staff of the status of probationary official automatically causes the provisions of the Conditions of Employment to cease to apply and, consequently, causes the contract of employment entered into on the basis thereof to cease to have effect.

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probationary official automatically causes the provisions of the Conditions of Employment of Other Servants to cease to apply and, consequently, causes the contract of employment entered into on the basis thereof to cease to have effect.

Pescatore Touffait Due

Delivered in open court in Luxembourg on 25 June 1981.

A. Van Houtte P. Pescatore Registrar President of the Second Chamber

O P I N I O N O F M R ADVOCATE GENERAL C A P O T O R T I DELIVERED O N 21 MAY 1981 1