C-16/81

J U D G M E N T O F T H E C O U R T (FIRST CHAMBER) 13 MAY 1982'

Agata Alaimo v Commission of the European Communities

(Officials — Concept of employment by the Communities)

Case 16/81

Officials — Recruitment — Competition — Conditions for admission — Extension of the age-limit for existing employees — Employment — Concept — Employees of the European Centre for the Development of Vocational Training — Nature and functions of the Centre — Employees of the Centre are employees of the European Communities (Staff ReguLtions of Officials, Annex III, Art. 1 (1); Council Regulations Nos 337/75 and 1859/76)

The expression "servants" appearing in 1859/76, respectively establishing the Article 1 (1) of Annex III to the Staff Centre and laying down the conditions Regulations of Officials must, for the of employment applicable to its staff, purposes of that provision, be construed which make applicable to the Centre the as including all employees of the Protocol on the Privileges and Immun- European Communities. ities of the European Communities and which assign any disputes between the In view of the nature and functions Centre and its employees to the Court of of the European Centre for the Justice, it must be concluded that the Development of Vocational Training and staff of the Centre are employed by the Council Regulations Nos 337/75 and European Communities.

APPLICATION for the annulment of the decision of the Selection Board for Open Competition N o C O M / L A / 3 1 5 not to admit the applicant to that competition,

T H E C O U R T (First Chamber)

composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

JUDGMENT

the following condition relating to the Declare the application unfounded; age-limit: "Candidates must have been born after 15 October 1948. This age- Make an appropriate order as to costs as limit does not apply to candidates who provided for by the law. on 15 October 1980 have been employed by an institution of the European Communities for at least one year." Ill — Contentions and argu- By a letter dated 7 November 1980 the m e n t s of t h e p a r t i e s Head of the Commission's Recruitment Division informed Mrs Alaimo that her application had not been accepted on the Mrs AJaimo's contention is that on 15 ground that the age-limit prescribed in October 1980 she had been "employed the Notice of Competition — which in by . . . the European Communities" for the applicant's case had in fact been at least one year and that she was exceeded — was mandatory except therefore entitled to benefit from the where the candidate had already been exemption from the age-limit provided employed by the Communities for at for in the Notice of Competition in least one year. favour of persons showing that they came within those terms. On 28 January 1981 Mrs Alaimo brought this application. In support of that contention Mrs Alaimo makes the following claims: Upon hearing the report of the Judge- Rapporteur and the views of the The European Centre for the Advocate General, the Court (First Development of Vocational Training Chamber) decided to open the oral (hereinafter referred to as "the Centre") procedure without any preparatory is a body of public Community law since inquiry. it was established by the Council, pursuant to Article 235 of the EEC Treaty, to achieve one of the objectives of the Community, in this case one of II — C o n c l u s i o n s of t h e p a r t i e s the tasks assigned to the Commission by- Article 118 of the Treaty, and since it was "set up within the framework of the Mrs Alaimo claims that the Court should: European Communities and will function in accordance with Community law" (cf. Annul the decision of the Selection the second and sixth recitals in the Board for Open Competition No C O M / preamble to Regulation No 337/75, LA/315 not to admit her to the mentioned above, establishing the competition; Centre);

Development of Vocational Training officials of the European Communities, (Official Journal 1976; L 214, p. 1) and appears to acknowledge at the same time Council Regulation (EEC, Euratom, that the staff have the status of servants ECSC) No 1237/80 of 13 May 1980 of the European Communities. That amending Regulation No 1859/76 conclusion may also be drawn from a (Official Journal 1980, L 127, p. 1); resolution of the European Parliament of 19 September 1980 in which it is affirmed inter alia that the staff of the The Protocol on the Privileges and Centre should be recruited in accordance Immunities of the European Com- with the rules applicable to the re- munities applies both to the Centre (cf. cruitment of officials of the institutions Article 16 of Regulation N o 337/75 and and that recruitment of the staff of the to its employees (cf. the first paragraph Centre should be carried out from the of Article 55 of Regulation N o 1859/ lists of candidates who have been suc- 76); cessful in competitions organized by Community institutions or by se- condment of officials serving in the Staff of the Centre are exempt from institutions, and that it is necessary "to national taxes on their salaries, wages improve the possibilities for mobility and emoluments paid by the Centre, between the Centre and the institutions". which deducts from them the Community tax (cf. the first paragraph of Article 55 and Article 56 of Regu- In her reply Mrs Alaimo poses the lation No 1859/76); question whether in the notice of competition which gave rise to the dispute the expression "employed by . . . the European Communities" should be The Court of Justice of the European given a special restrictive meaning so as Communities has jurisdiction in any to include only the staff of Community dispute between the Centre and its staff institutions. She replies that the (cf. Article 44 of Regulation N o 1859/ expression should be construed in its 76). broadest sense as including the staff of institutions as well as the staff of bodies established under public Community law. On the basis of the foregoing considerations Mrs Alaimo considers that employees of the Centre are servants of The reason for the exemption from the the European Communities and that age-limit is that the administrative since on 15 October 1980 she had been authority does not wish, as regards the employed by the Centre for nearly four condition relating to age laid down for years she ought to have been granted the admission to a competition, to place on benefit of the exemption from the age- the same footing candidates coming from limit. outside and candidates who are already employed by the European Communities and in respect of whom it is a question To lend further weight to her arguments not of entering into the service of those Mrs Alaimo adds ex abundanti cautela institutions but of progressing in their that Regulation N o 1237/80, which careers or obtaining established status. states in the fourth recital that it is To some extent it is necessary to apply desirable to align certain provisions of similar reasoning to that applied by the the conditions of employment of staff of Court of Justice in order to admit the Centre with those applicable to auxilian' staff to internal competitions

organized by the institutions. Employees be regarded as "servants of the of Community bodies established by Communities" within the meaning of secondary legislation on the basis of Article 1 (1) (g) of Annex III to the Staff Anicie 235 of the Treaty also take part Regulations concerning exemption from in the tasks assigned to the Communities the age-limit. and are already "members of the family", with the result that it is logical to apply to them wider and more The expression therefore refers solely to generous conditions for admission to the employees of the organs of those open competitions than those which are legal persons, that is to say to the applied to external candidates. employees of the Community institutions (or of those bodies which the Staff Regu- lations of Officials treat as such for the In conclusion Mrs Alaimo considers that purposes of those regulations) and not to it is appropriate to recall that, according the employees of other Community to the terms of the judgment delivered bodies established directly by the Treaty by the Court in Joined Cases 27 and or in implementation thereof which 39/59 Alberto Campolongo v High constitute legal persons distinct from the Authority of the ECSC [1960] ECR 391 Communities. concerning the application of the provisions of Article 12 (a) of the

European Investment Bank and its servants on the basis of Article 179 of the EEC Treaty, which states thai "the The Commission considers that solely the Court of Justice shall have jurisdiction in staff of the three legal persons any dispute between the Community and constituting the Communities, who are its servants within the limits and under covered by the same conditions of the conditions laid down in the Staff employment irrespective of the Regulations or the Conditions of Community to which they belong, may Employment".

The Commission maintains however that Communities and the Conditions of that judgment is of limited effect since Employment of Other Servants of the the Court merely held that servants of European Communities, nevertheless the Bank were to be considered servants remain distinct. Recruitment to the of the Communities for the purpose of Centre is not accompanied by the same Article 179 of the EEC Treaty. guarantees as recruitment to the institutions. Those differences are of such a nature as to preclude the exemption, provided for in favour of servants of the Community institutions, It does not follow from that judgment from being extended to staff of the that the staff of the Bank must be treated Centre. as servants of the institutions for all purposes, including the application of Article 1 (1) (g) of Annex III to the Staff Regulations. That applies a fortiori to the staff of other bodies, such as the Centre, As regards the judgment in the in view of the fact that the Bank was CampoTongo case mentioned by Mrs established directly by the Treaty and its Alaimo in support of her contention, the Statute is the subject of a Protocol Commission recalls that that judgment annexed to the Treaty, whilst the other was delivered in 1960 against the back- bodies were established subsequently ground of the imminent merger of the pursuant to Article 235 of the Treaty. institutions of the three Communities and the laying down of uniform Staff Regulations. Since that time the merger has taken place and uniform Staff Regu- lations, equally applicable to employees More particularly, although the staff of of the European Investment Bank, have the Centre benefit from the privileges been adopted, but that process of and immunities conferred on servants of unification has not been extended to the Communities and are considered as Community bodies established in coming within the jurisdiction of the implementation of Article 235 of the Court of Justice of the European EEC Treaty, which have their own legal Communities as regards any disputes personality and whose staff are covered between them and the Centre, it is only by separate regulations. as a result of the express provisions of Regulations Nos 337/75 and 1859/76 that they are treated, to that extent and to that extent only, as servants of the European Communities. IV — Oral p r o c e d u r e

3 The above-mentioned exemption was based on Article 1 (1) of Annex III to the Staff Regulations of Officials of the European Communities laying down the procedures to be adhered to in competitions, the terms of which are as follows:

"Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.

It must specify:

(g) where appropriate, the age-limit and any extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service;

»»

JUDGMENT OF 13. 5. 1982 — CASE 16/81

6 Although the expression used in the notice of competition "employed by . . . the European Communities" differs slightly in its actual wording from the term appearing in Article 1 (1) of Annex III to the Staff Regulations ("servants"), there can be no doubt that the meaning is the same in both cases. Since the definition of "servant" was not given in the above-mentioned article, its scope must be determined in the light of the totality of the provisions in which it appears, the provisions of the Treaty being examined first. It may be seen that each time the word "servant" appears in a provision of one of the Treaties (first sentence of the second paragraph of Anicie 40 of the ECSC Treaty; Anieles 179 and the second paragraph of Anicie 215 of the EEC Treaty; Anicie 152 and the second paragraph of Anicie 188 of the EAEC Treaty; Anicie 24 (1) of the Treaty establishing a Single Council and a Single Commission of the European Communities) it is linked with the word "Community".

The determination of this dispute thus depends upon the reply to be given to the question whether the expression "employed b y . . . the European Communities" also embraces staff of the Centre. In order to reply to that question it is necessary and sufficient to ascertain whether the Centre is pan of the "European Communities".

ALAIMO v COMMISSION

8 In that respect it must first of all be pointed out that Article 16 of Regulation No 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training provides that "the Protocol on the Privileges and Immunities of the European Communities shall apply to the Centre".

u In view of the wording of the notice of competition, the nature and functions of the Centre and the regulations of the Council which make applicable to

JUDGMENT OF 13. 5. 1982 — CASE 16/81

the Centre the Protocol on the Privileges and Immunities and which refer any disputes between the Centre and its employees to the Court of Justice, it must be concluded that the staff of the Centre are employed by the European Communities.

i4 Therefore the decision of the Selection Board for Competition N o C O M / LA/315 by which Mrs Alaimo was refused admission to that competition on the ground that she was not employed by the European Communities must be annulled.

is As this was an open competition organized to constitute a reserve for re- cruitment, the rights of the applicant will be sufficiently protected if the Selection Board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof.

Costs

2. Orders the Commission to pay the costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 13 May 1982.

P. Heim G. Bosco Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED ON 18 FEBRUARY 1982 '

Mr President, Mrs Alaimo, who was born in 1942 and Members of the Court, had been employed since 1 December 1976 by the European Centre for the Development of Vocational Training, 1. Introduction submitted an application for the competition. By a ¡etter of 7 November 1980 she was however notified by Yves In the Official Journal of the European Desbois, Head of the Commission's Re- Communities, C 225 of 4 September cruitment Division, that the Selection 1980, notice was given on page 8 of Board for the competition had rejected Open Competition No C O M / L V 3 1 5 , her application because of her age. That which was intended to constitute a rejection was based on a decision not to reserve for the recruitment of translators allow the applicant to benefit from the having as their main language German, exemption from the maximum age-limit English, French, Italian or Dutch. Under for persons employed by the European Point B.l. the following condition as to Communities. age-limit was laid down: Mrs Alaimo has brought this action against that rejection. The Commission "Candidates must have been born after does not dispute the admissibility of the 13 October 1948. This age-limit does not action. apply to candidates who on 15 October 1980 have been employed by an The European Centre for the institution of the European Communities Development of Vocational Training was for at least one year." established, pursuant to Article 235 of