C-109/81

J U D G M E N T OF T H E C O U R T (FIRST CHAMBER) 1 JULY 1982 «

Teresita Pace, née Porta, v Commission of the European Communities

(Auxiliary staff — Employment or independent work)

Case 109/81

Jurisdiction of the Court — Arbitration dause — Contractual relationship based on successive contracts — Repkcement of an oral contract by annual written contracts — Absence of any arbitration clause in the first written contracts — Arbitration clause included in each of the contracts signed subsequently — Consideration by the Court of all the contracts successively entered into (ECSC Treaty, Art. 42; EEC Treaty, Art. 181; EAEC Treaty, Art. 153)

In so far as the jurisdiction of the Court relationship, there were not even any of Justice is based on an arbitration written contracts is no obstacle to the clause contained in each of the annual Court's having regard, in its assessment contracts signed as from a particular of the relations between the parties, to year, the fact that the same clause does all the contracts successively entered not appear in the previous contracts and into. that, as regards the first years of the

APPLICATION in the terms set out in the applicant's conclusions,

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: F. Capotorti Registrar: P. Heim

gives the following

JUDGMENT

d'opera" [provision of services] were Mrs Pace then sent a registered letter concluded. Whilst those contracts were, on 2 October 1980 to the President according to the intention of the parties, of the Commission of the European governed by Italian law they nevertheless Communities in which, pursuant to contained a provision, pursuant to Article 90 (2) of the Staff Regulations of Article 42 of the ECSC Treaty and Officials, she contested the decision of Article 153 of the EAEC Treaty, that the the Director of the Centre rejecting her Court of Justice of the European complaint and confirmed the arguments Communities was to have exclusive set out in her first letter. jurisdiction regarding any disputes arising as to the validity, interpretation Since the second letter drew no response, of performance thereof. Mrs Pace brought the present action against the implied decision rejecting her Under those contracts, Mrs Pace's complaint, the application being received remuneration always took the form of at the Court Registry on 6 May 1981. hourly pay, based on the number of hours of classes given. Upon hearing the report of the Judge- Rapporteur and the views of the On 16 July 1980 Mrs Pace sent a Advocate General, the Court decided to registered letter to the Director of the open the oral procedure without any Centre in which she stated that under preparatory inquiry. Italian law the contracts in question were The Court also decided, pursuant to to be regarded for all purposes as giving Article 95 (1) and (2) of its Rules of rise to a single employment relationship Procedure, to assign the case to the First of indefinite duration and that Chamber. accordingly she was entitled to salary during the months of the year when the school was closed, to holidays or to an allowance in lieu thereof and to sickness- II — C o n c l u s i o n s of the p a r t i e s insurance and pension contributions. Moreover, Mrs Pace stated that her Mrs Pace claims that the Court should : letter should be regarded as constituting an objection to the expiry date of the As a preliminary and interim measure, employment relationship and that she pursuant to Article 186 of the Treaty: was at the disposal of the Centre for all academic requirements, subject to her Order the Commission to pay her entitlement to holidays. Finally, she remuneration for the school year in asked to be informed whether the course; European Atomic Energy Community Primarily and with regard to the intended to apply Italian law in the terms substance of the case : set out above. Order the Commission to accord to the In his reply of 12 September 1980 the applicant the same economic and legal Director of the Centre, having treatment as that laid down in the acknowledged Italian law to be collective labour agreement in force in applicable, denied that the contracts in Italy in the private teaching sector; question fell within the category of "employment", contending on the Order the Commission to grant to the contrary that they fell within the classi- applicant upon termination of her fication of contracts for "independent employment the retirement pension work" (in Italian law "lavoro provided for staff serving as officials of autonomo"). the Community;

In the alternative and with regard to the The jurisdiction of the Court is substance of the case : incontestable since it arises from a specific clause in the contract; Dismiss the claims as unfounded and order the applicant to pay the costs. Article 91 of the Staff Regulations is applicable by virtue of Article 46 of the Conditions of Employment of Other Servants pursuant to which Title VII I l l — Submissions and argu- (which includes Article 91) concerning ments of the parties appeals applies by analogy. Those conditions apply to the "members of the auxiliary staff" defined by Article 3 (a) Admissibility as follows: "'Auxiliary staff means: (a) staff engaged . . . for the performance The Commission observes in the first of full-time or part-time duties in an place that since the claim is founded on institution but not assigned to a post Article 91 of the Staff Regulations which included in the list of posts appended to relates only to officials of the the section of the budget relating to that Community it must be declared institution." inadmissible. In this case, there is a contractual relationship freely entered In the present case, the applicant asserts into by the parties, who acknowledge the that she was recruited on the under- applicability of Italian law to the contract standing that she was to be an employee and also recognize the jurisdiction of the and not an independent worker. That Court of Justice pursuant to a specific claim, even if contested, is sufficient not clause in the contract which refers to only to establish the jurisdiction of the Article 153 of the EAEC Treaty and Court but also to render the procedure Article 181 of the EEC Treaty. It follows under Article 91 of the Staff Regulations that the application bears no direct or applicable, as appears from the judgment indirect relation to Article 91 of the Staff of the Court of 11 March 1975 in Case

The Commission considers that in this case the Court, acting pursuant to a clause conferring jurisdiction, is called upon, by virtue of a provision contained Where, by means of a measure adopted in the same contract, to settle the dispute by one of the institutions, Community by applying Italian law as well (as the law provides that a particular relation- Court already had occasion to do in a ship is to be governed by the laws of similar case — cf. judgment of 7 a Member State, that relationship December 1976 in Case 23/76 Pellegrini continues also to be a relationship within [1976] ECR 1807). In any case, the and governed by Community law. It Court has on several occasions follows that the Court is called upon to recognized that the Treaties and apply a Community measure within the secondary Community legislation are not Community legal order and need take the only sources of Community law and cognizance of Italian law only in order that it is appropriate to use national law to classify that relationship; once that in order to fill any lacunae in classification has been made, the Court Community law (judgment of the Court can decide upon the repercussions of 12 June 1980 in Case 138/79 Express thereof on the Community institution in Dairy Food Limited v Intervention Board question. Thus, the applicant claims for Agricultural Produce [1980] ECR entitlement to a pension not on the basis 1887). In fact, the applicant seeks to of Italian law but on the basis of avail herself of both Italian law and Community law; Italian law serves only Community law so as to obtain from one to define the relationship as an what she thinks may be difficult to employment relationship. obtain from the other.

(b) Substance of the case institutions, private individuals or legal persons. As regards the substance of the case, the The nomen juris "prestazioni d'opera" applicant claims that under Italian law [provision of services] contained in the there is no doubt that teaching in private contract is of no importance since the schools of any type gives rise to an terminology used by the parties cannot employment relationship of indefinite change the essential nature of the duration. In support of her assertion, she relationship. cites a number of judgments of Italian courts according to which, by virtue of Articles 1 and 2 of Italian Law No 230 The Commission considers that, although of 18 April 1962, a contract which is Italian law is applicable to the case, renewed, together with the additional neither the legislation relied upon nor responsibilities deriving therefrom, for the case-law referring thereto is relevant. several consecutive years and for periods The judgments cited all concern private exceeding the duration of each teaching schools and, because of the utilitarian course is regarded as a contract of criteria according to which such schools indefinite duration. are managed, they have an inevitable tendency to exploit the teaching staff who, because of their particular As a result of the nature of her contract, situation, are inadequately protected. the applicant is entitled to all the This inevitably leads the courts to give conditions enjoyed by teachers in the decisions intended in all cases to protect private sector, namely: the party who is regarded as economically weak. That case-law is not applicable to the Commission of the remuneration during the summer months European Communities, a supranational when the school is closed; institution, which is not to be regarded in the same way as a private entre- preneur, since it is non-profit-making. the payment of insurance and social- On the contrary, the academic activity security contributions: provided by it is of public utility in so far as its sole objective is to improve the technical knowledge of a number of the cost-of-living allowance ("contin- people; in that respect, the Commission genza"); is comparable to a public administration and not to a private school. In these circumstances, the case-law of the Italian periodical seniority increases; administrative courts, which is more restrictive than that of the ordinary courts, becomes relevant. the 13th monthly payment; In the second place, the Commission the retirement pension upon termination observes that Mrs Pace's work, although of employment; extending over a long period, is nevertheless the provision of a service of a special and occasional nature, so that it all other economic and legal benefits may be included within the cases provided for in the national collective referred in Article 51 of Decree No labour agreement of 11 September 1978 1252 of i:ie President of the Republic of for staff in schools managed by 7 October 1963 which, in its list of cat-

The Commission does not, moreover, understand on what grounds it should In her reply, the applicant disputes the have engaged in a pretence from which Commission's view that Italian legislation ultimately no advantage would accrue to on teaching contracts is applicable it, in view of the fact that the total exclusively to private schools. In that remuneration received in respect of each respect, she cites judgments of the year by the applicant exceeds by far the combined divisions of the Italian Corte remuneration provided for in the di Cassazione according to which, in the collective agreement even though the case of schools managed by public latter includes public holidays, the 13th bodies, the public nature of the body month and other benefits not granted by does not necessarily mean that the the Commission. In fact, under the employment relationship of the teachers collective agreement, work of 18 hours a is one governed by public law. The week — a number of hours which the relationship is governed by public law applicant never worked — gives the right only if the operation of the school falls to annual remuneration of LIT 2 730 000 within the institutional objects of the (plus the cost-of-living allowance), body in question, but it is not governed whereas for the last academic year Mrs by public law if the school is managed on Pace, under her individual contract, a jure privatorum basis (cj. judgments No received total remuneration of LIT 1321 of 23 June 1965, No 933 of 7 April

JUDGMENT OF 1. 7. 1982 — CASE 109/81

However, closed or the applicant was sick or on the applicant maintains that, under maternity leave. She therefore maintains, Italian law, if an employer fails to insure on the basis of various calculations, that its employee, the latter is entitled to she worked a complete or nearly compensation for damage where, as in complete teaching timetable and notes the present case, non-payment of the that all the teachers in the Centre, with contributions entails total or partial loss the sole exception of three language of entitlement to the insurance benefit. teachers, are officials in the permanent As regards Community law, Article 70 employ of the Community. The applicant (1) of the Conditions of Employment of further observes that Italian case-law has Other Servants provides that auxiliary held that contractually agreed limitations staff must be affiliated to a compulsory on the duration of an employment social-security scheme.

All these advantages accrue to the applicant under Italian law and they cannot be offset by the monthly salary, even if the latter is significantly Finally, the applicant complains that on 9 greater than the compulsory minimum September 1981 she was publicly invited under the collective agreement. to leave the school and that, following

As regards the teaching hours actually worked by the applicant, the Com- At the sitting on 25 March 1982, oral mission emphasizes that it is evident argument was presented for the applicant from the school timetable that the hours by G. Celona of the Milan Bar, and for worked by Mrs Pace each week never the Commission of the European attained the 18 hours provided for in the Communities by S. Fabro, a member of collective agreement and that in any case its Legal Deparment, acting as Agent. those hours are of a purely notional The Commission replied, by letter value, since although when Mrs Pace received at the Registry on 30 March was ill or unable to be present the 1982, to a question put by the Advocate timetable was not respected, it served as General, Mr Capotorti, concerning the the basis for her remuneration. legal position and remuneration of the other teachers at the Ispra technical and vocational training school. There is no doubt, according to the Commission, that in this case the parties intended to create a relationship limited in time, as is attested by the contracts for The Advocate General delivered his the various academic years. The renewal opinion at the sitting on 6 May 1982.

JUDGMErfT OF I. 7. 1982 — CASE 109/81

Decision

1 By application received at the Court Registry on 6 May 1981, Mrs Teresita Pace, née Porta, a teacher at the technical and vocational training school of the Ispra Joint Research Centre (hereinafter referred to as "the Centre"), brought an action for an order that the Commission should accord her economic and legal treatment equivalent to that laid down in the collective labour agreement in force in Italy for staff in the private teaching sector and also grant her, upon termination of her employment, the retirement pension provided for employees of the Community.

PORTA v COMMISSION

5 The applicant claims in her application that under Italian law, which is applicable to this case, the employment relationship between her and the Centre must be regarded as relating to the uninterrupted provision of work as an employee for an indefinite period and claims in consequence that she should be accorded the same treatment as private teachers and, in particular, she claims entitlement to pay during the summer months when the schoool is closed, payment of insurance and social-security contributions, the cost-of- living allowance, periodical seniority rises, the 13th monthly payment, a retirement pension upon ceasing work definitively, and all other economic and legal advantages provided for in the national collective labour agreement of 11 September 1978 relating to management staff and teaching staff in schools managed by institutions, private individuals or legal persons.

6 She also claims that her entitlement to membership of a pension scheme should be recognized. In that respect, she had initially requested in her application that the conditions laid down for staff in the service of the Communities should be applied to her. At the hearing, she stated that for that purpose she does not seek to be included in the list of posts of the staff of the Commission but simply that she be granted, in one way or another, the same pension as that which she would have received if her insurance contributions had been paid by the Centre, as is required by Italian law.

Admissibility

7 In its defence, the Commission objected that the application was inadmissible as being founded on Article 91 of the Staff Regulations of Officials upon which the applicant is not entitled to rely.

i2 To that end, it is necessary to establish in the first place whether the applicant's work for the Centre from 1963 to 1980 has given rise to an employment relationship of indefinite duration, regard being had to the purpose for which the work was done, the duration thereof and the manner in which it was performed.

u According to Italian law, the fundamental criterion for distinguishing between independent work ("lavoro autonomo") and employment ("lavoro subordinato") is based on the fact that the subject-matter of independent work is the "opus", that is to say the result of the worker's activity, whereas the subject-matter of employment is the work effort ("operae") which the

PORTA v COMMISSION

worker places at the disposal of the employer, expending that effort under the supervision and in accordance with the instructions of the employer.

i4 In accordance with that criterion, Italian case-law consistently declines to classify teaching activity as independent work when that activity is carried cut subject to the control of the principal of the school, is paid for monthly and involves the fulfilment of programmes drawn up by the management of the school and compliance, which may be subject to verification, with a pre- determined timetable.

is In this case, it is apparent from the wording of the contracts entered into from 1976 to 1980 that the applicant, although enjoying, like every teacher in a public or private school, independence regarding her teaching methods, nevertheless had to follow programmes and pursue pedagogical objectives which were established in advance by the management of the school, that the starting and finishing dates of the courses, the holidays and the timetable were fixed according to the service requirements of the institution and that the payment of remuneration was monthly. It follows from this that the conditions laid down in Italian case-law for work to be considered as "employment" have been satisfied in the applicant's case.

is The Commission contended in its defence that the relationship at issue falls within the provisions of Article 1 (2) (c) of Law No 230 of 1962 concerning commitments entered into "with a view to performance of work or a service defined and determined in advance, of an extraordinary or occasional nature". It also sought to rely upon Article 51 of Decree No 1252 above- mentioned, concerning staff responsible for "vocational training courses of short duration". Those arguments, as the Commission itself admitted at the hearing, cannot be upheld, since in this case the relationship is one which extended without interruption over 17 years.

i9 The Commission further claims that the remuneration paid to the applicant is higher than that provided for by the national collective agreement referred to by her, even if regard is had to the fact that she did not enjoy a number of advantages provided for by that agreement. That fact, even if it were true, does not affect the rights claimed by the applicant, since the levels of re- muneration provided for in the agreement are merely minimum levels.

20 It must therefore be concluded that the teaching provided over a period of 17 years by the applicant at the technical and vocational training school at the Centre involved an employment relationship of indefinite duration and that accordingly the applicant is entitled to the benefit of every advantage which Italian law attaches to a relationship of that kind.

PORTA v COMMISSION

2i As regards the retirement pension, the applicant has abandoned her initial claim that she be classified as an employee of the Commission and be granted a Community pension. There is no need therefore to adjudicate on that matter. On the other hand, it should be made clear that the applicant is entitled to be granted, in such manner as may be agreed between the parties, the equivalent of the retirement pension to which she would have been entitled under Italian legislation if the Centre had not failed to insure her with the Istituto Nazionale della Previdenza Sociale [National Social Welfare Institution] and to pay the contributions for that insurance, in accordance with the provisions of the law governing the contract.

OPINION OF MR CAPOTORTI — CASE 109/81

3. Declares that if no agreement is reached within that period the Court will adjudicate on the applicant's claim regarding the remuneration and pension due to her;

4. Reserves the costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 1 July 1982.

J. A. Pompe G. Bosco Deputy Registrar President of the First Chamber