C-271/83

AINSWORTH v COMMISSION AND COUNCIL

O P I N I O N O F M R ADVOCATE GENERAL V E R L O R E N VAN T H E M A A T delivered on 12 December 1985*

Mr President, by Decision No 78/470 of 30 May 1978 Members of the Court, (Official Journal L 151, p. 8), amended the abovementioned research programme. Decision No 78/471, adopted on the same 1. Introduction day, conferred responsibility for the implementation of that project on a joint undertaking, the Joint European Torus These cases, which are all joined, concern (JET) Joint Undertaking (hereinafter 174 applications lodged by British members referred to as 'JET'), constituted under the of staff of the United Kingdom Atomic provisions of Chapter V of the second Title Energy Authority (hereinafter referred to as of the EAEC Treaty, and the statutes 'the Authority* or 'the host organization') annexed to that decision (Official Journal made available to the Joint European Torus L 151, p. 10). GET) Joint Undertaking. All the applications concern in particular the Under Article 1 of the Statutes, the seat of rejection of their request to be appointed as the Joint Undertaking is at the establishment temporary servants of the Community of the Authority at Culham, Oxfordshire. during the lifetime of the JET project. The members of JET are:

1.1. Purpose of the JET Joint Undertaking (i) the EAEC;

(ii) the host organization (the Authority); By Decision No 76/345/Euratom of 25 March 1976, the Council, on the basis of (iii) the bodies corresponding to the latter Article 7 of the EAEC Treaty, adopted a in the other Member States of the research and training programme for the EAEC; European Atomic Energy Community (EAEC) in the field of fusion and plasma (iv) the National Swedish Board for Energy physics for a period of five years from 1 Source Development. January 1976. The purpose of that programme is 'to reach the application stage of controlled thermonuclear fusion' in order 1.2. Composition and arrangements for to ensure the Community's energy supplies recruitment of the JET project team (Article 8 in the long term. of the Statutes)

Article 8.5 of the Statutes provides that: By letters sent between July and September 'Unless decided otherwise in special cases in 1983 and confirmed between September and accordance with the procedures for the November 1983 all the applicants called assignment and management of staff to be upon the Director of the Joint Undertaking decided by the JET Council, staff made and the Commission on the basis of the available by the members of the Joint third paragraph of Article 148 of the EAEC Undertaking other than the host organ- Treaty, ization as well as other personnel shall be recruited by the Commission for temporary posts in accordance with the "Conditions of (i) to engage them as temporary servants of Employment of Other Servants of the the Communities seconded to the JET European Communities" and assigned by project team; and the Commission to the Joint Undertaking.' (ii) to compensate them for all past and future pecuniary and other losses attrib- 1.3. Origin and development of the dispute utable to their non-engagement as temporary servants of the Communities.

The applicants, who are British nationals In a standard letter of 1 November 1983, made available to the Joint Undertaking by the Director of the JET Joint Undertaking the Authority, claim the status of temporary informed each applicant that it was not servants of the EAEC. possible to give consideration to their request because 'staff from [the Authority] remained its employees' pursuant to Article The JET project, which is to take 12 years 8 of the Statutes. (1978-90), is divided into two phases: the initial, construction phase (1978-83) and the operational phase, commenced in May Having regard to the general terms of that 1983. letter and to the fact that under Article 5.11

4. Under Article 69 of the Rules of 2. Further or alternatively, under Anicie Procedure, order that the costs of these 148 (3) of the EAEC Treaty, declare that applications be paid by the defendants or the Commission's failure to address to one of them in any event; the applicants an offer of employment as temporary servants of the European Communities in accordance with the applicants' relevant letters of request 5. Under the Statutes of the Court of constituted an infringement of the EAEC Justice and/or the Rules of Procedure of Treaty; the Court of Justice take such further 1 measures and grant such further relief, if — Th' date of the act adversely affecting the applicants did any, as may be necessary, just or not appear in the conclusions in Cases 158/84, 203/84 and 13/85. equitable.

OPINION OF MR VERLOREN VAN THEMAAT —JOINED CASES 271/83, 15, 36, 113, 158 AND 203/84 AND 13/85

In the event that its objection of inadmissi- taking between 1978 and 1983 to engage bility is not accepted, the Commission the applicants. For the same reason, the contends that the Court should: submissions relating to the objection of illegality raised with regard to Council Decision No 78/471 and the submissions 1. Dismiss the applications; relating to damages are inadmissible.

AINSWORTH v COMMISSION AND COUNCIL

within the meaning of the second paragraph employed by the host organization at the of Article 146 of the EAEC Treaty, as time of their selection belong, according to mentioned by the Commission. The Article 8.1, to the group 'other personnel'. It objection to the other submissions should be is expressly provided in Article 8.5 that dismissed for that same reason. Besides, the members of this group are to be engaged as action in damages is an independent temporary servants. procedure with a limitation period of five years (Article 44 of the Statute of the Court of Justice of the EAEC and Article 43 of the The applicants' second submission is that the Statute of the Court of Justice of the EEC). provision in Articles 8.4 and 8.5 to the effect that those persons who were already in the employ of the host organization at the time As regards the plea of illegality raised of their selection and who all possess British against Council Decision No 78/471 I nationality are not to be engaged as would also point out that the action is not temporary officials but are to remain in the barred by virtue of the fact that in the employment of the host organization is present case it is directed against a general contrary to the general prohibition of decision instead of against a regulation as discrimination. During the course of the referred to in Article 156 of the EAEC proceedings this submission was widened Treaty. The Court has interpreted that since the defendants take the view that that article widely in order to provide individuals provision is limited not only to that category with the possibility of judicial review in the but also covers all those applicants of British sense that proceedings may also be brought nationality who were still not in the employ to challenge acts which have a similar effect of the host organization at the time of their to a regulation in the formal sense (Case selection. 92/78 Simmenthal SpAv Commission [1979] ECR 777, at p. 800). This was also acknowledged by the Council's represen- 3.2. The applicants' position regarding the tative at the hearing. breach of the Statutes

quently, they should be engaged as reflected in the second and third recitals in temporary servants (Article 8.5). the preamble to Council Decision N o 78/471. The J E T project must be a 'joint effort' permitting interaction and cooperation between the project and the laboratories associated with the fusion In the first place they refer to Article 8.1 programme. This 'joint effort', 'interaction' which expressly divides staff into two and 'cooperation' are reflected in the groups, namely those coming from the composition of the Joint Undertaking, the members of the Joint Undertaking and members of which are listed in Article 1.3 of other personnel. The applicants argue that it the Statutes, and in the obligation placed on is clear from the provisions which follow those members to make qualified staff that the first category comprises staff who available to the Joint Undertaking in were already employed by the member of accordance with Article 8.3 of the Statutes the Joint Undertaking. Thus Article 8.4 and the obligation under Article 8.8 to states that staff made available by the host re-employ such staff as soon as they have organization shall remain in the employment finished work on the project. The structure of that organization. Article 8.8 requires the of the JET Joint Undertaking is unique in members who have placed staff at the comparison with the other joint under- disposal of the project to re-employ such takings which have been in existence for staff as soon as their work on the project much longer. They all concern national has been completed. undertakings which, because of their Community interest, were only later turned into joint undertakings. Their staff are composed of one nationality.

Decision N o 78/471, is to last 12 years. In since the 'return ticket' does have real order to prevent social problems at the end importance. of the project re-employment is regarded as fundamental from the outset. Therefore, individual job applications from outside the members have not in general been successful. In a limited number of cases in When resolving this dispute it should be which they were successful arrangements borne in mind that the contested practice could subsequently be made for re- was carried out at a stage before the staff employment by a member before the end of concerned were made available to the the project. project. The Statutes are silent on this preliminary stage which is governed by the Supplementary Rules provided for in Article 8.9 which states that the J E T Council shall establish the detailed procedures for 3.5. Assessment of the submission assignment and management of staff. Those rules confirm the central role of the members and the practice followed in the assignment of staff. Vacancies are initially The applicants' interpretation of the relevant notified to the members who circulate provisions is at first sight attractive and notices of them within their organization logically correct. The Statutes do indeed (Section 5.2). After the final selection appear to envisage, on the one hand, staff decision has been taken by the Director of already in the employment of the member the project, it is notified to the appropriate and, on the other hand, 'other personnel' member (Section 5.10). without such an employment relationship. The applicants who therefore still had no employment relationship with the host organization when they submitted their job applications therefore belong in the The Supplementary Rules contain no category 'other personnel' and after provisions regarding 'other personnel'. Only selection can be engaged by the Commission 'the special cases' referred to in Article 8.5 as temporary servants. of the Statutes are further defined in provisions which are not applicable, however, to this case.

4. Breach of the prohibition of discrimi- The applicants take the view that the simple nation fact that they were employed by the Authority at the time of selection cannot justify the difference in treatment between the various members of the project team. 4.1. Introduction That difference conflicts with the Community nature of the project mentioned in Article 8 of the Statutes of the Joint Undertaking. In dealing with this submission I assume that the rule applied with regard to recruitment is in accordance with the Statutes, as argued hitherto. Again, I shall 4.3. The defendants' arguments first set out the arguments of the parties and then reach a conclusion on this part of the case. The Commission repeats the arguments which it put forward on the previous issue. It emphasizes the part played by the 4.2. The applicants' arguments regarding the members in the JET project, its temporary breach of the prohibition of discrimination nature and the allied necessity of a 'return ticket' arrangement for the personnel concerned upon termination of their work. The applicants contend that all British candidates must be in the employment of the host organization before they can be The Council acknowledges that there is a made available to the JET project. By virtue difference in treatment between two groups of Article 8.4 and 8.5 of the Statutes this of personnel (UKAEA and EAEC). This means that only British candidates are difference is not unlawful, however, since it excluded from engagement as temporary arises from the difference between the servants of the Commission. statutes applicable to them. Both groups are therefore in different situations and may not therefore claim equal treatment. It is clear from the letters from the Personnel Division of the Joint Under- taking, which confirms receipt of the The Council has expressly stated that the applications or notifies applicants of the aim of the arrangements was to guarantee a selection decision, that the distinction made balance of nationalities amongst the project between the candidates is based on their staff. Since the Authority's staff always nationality. It is generally known that the have British nationality, the Community host organization has only British nationals contingent should consist of all Community in its employment. In the letters produced to nationalities except British. the Court it is stated that ' . . . British candidates who are selected for JET posts either are, or become, members of the UK Atomic Energy Authority . . . " and that their The Council emphasizes that, because of 'subsequent assignment to JET . . . [is] their special position in the joint effort of all governed by the terms and conditions of the members of the Joint Undertaking, the [their] employment with the UKAEA' EAEC and the Authority act as employers (Annexes 11 and 12 to the applications). of the staff assigned to the Joint Under-

The Council's argument that the difference in treatment of the two groups is not In assessing this submission it should be unlawful owing to the difference between remembered first of all that, as is clear from the statutes applicable to them is not the third recital in the preamble to Council acceptable. After all, it was the Council Decision No 78/471 and Article 8.2 of the which created this difference in treatment in Statutes, the JET project was set up as a its decision and the statutes annexed Community project, unlike the other thereto. According to the established aforementioned joint undertakings. case-law of the Court, the same situations must be dealt with in the same way and different situations in a different way. However, the difference must reside in Article 8.2 reads as follows: objective circumstances in order for unequal treatment to be acceptable. The Council's argument about the difference in statutes is not sufficient for that purpose. 'The composition of the project team shall strike a reasonable balance between the need to guarantee the Community nature of the project, especially in the case of posts In my opinion there is nothing to suggest for which qualifications of a certain level that the fact that members of staff come are required (physicists, engineers, adminis- from the host organization can justify a trative staff at an equivalent level) and the difference in treatment. Neither the Statutes need to give the Director of the project the nor the Supplementary Rules indicate that, widest possible authority in the matter of when candidates are selected, either at the

start of the project or thereafter, a pref- mental principles laid down in Community erential Tight to employment by J E T exists law are applicable. for members of staff coming from the Authority. It is only after the selection has been made by the Director of the project that the difference between the candidates is In my view, the arrangements in question, applied, ¡depending -on their .origin, as is also laid down in Articles 8.4 and 8.5 of the clear from the aforementioned letters Statutes, are therefore contrary to the produced by the applicants. T h e rules create general prohibition of discrimination on the impression that in principle the 'old' grounds of nationality. The decision based model for the existing joint arrangements on them should therefore, in my view, be has been taken, namely with the very same annulled. I have also considered whether statutes applying to the existing members of that conclusion should be limited to staff staff of the modified organization and who were selected by the Director of the besides them staff from throughout the Joint Undertaking or to British staff who Community, with the exception of the first •were engaged at the same time as staff of group. Such an arrangement is not other nationalities recruited by the acceptable in view of the Community nature Commission. Since the members of staff of the project from the beginning. recruited by the Commission were also in most cases already employed by a member of JET, I do not, however, consider it I would also remind the Court that when possible to limit my conclusion in that way. answering its questions at the hearing the As in the case of the staff made available by Council expressly confirmed its earlier view the host organization, they are in fact, that the aim of the rules is to ensure a according to Article 8.5 of the Statutes, staff balance of nationalities amongst the made available by the members. They may members of the project team. However, in consist of both 'new' and 'old' staff. The my view it is not clear why such a balance prohibition of discrimination should then cannot be achieved amongst the temporary apply to both categories of staff as regards servants of the Commission. Moreover, both conditions of employment. defendants have confirmed that there are no financial reasons underlying the difference in treatment. 5. The claim for compensation

that claim is further defined inasmuch as the In my view, the criteria which the Court Court is requested to order the parties to applies in granting, a claim' for compensation seek agreement on the amount of compen- are fulfilled. In the present case the breach sation to be paid. The applicants in fact take of the- fundamental, prohibition of discrimi- the view that at this, suge the amount nation on grounds of nationality constitutes of compensation cannot be properly 'a, sufficiently serious breach of a superior determined save that it should cover the rule of law for the protection of the indi- difference between the pay received as a vidual' within the meaning of the Court's member of the Authority's staff and as a case-law, inter alia its decision· in Case temporary servant of the Commission. 238/78 Ireks-Arkady v Council and Indeed, it is not clear at the moment at Commission [1979] ECR 2955 at p. 2972. what level the applicants should be instated. However, I consider that at this stage the The defendants have not discussed the claim only way in which· the Court cani grant the for compensation except in connection with claim is to order the parties to seek the objection of inadmissibility which I have agreement on the amount of compensation rejected. to be paid.

6. Final conclusion

In conclusion I propose that in the present cases the Court should:

(1) Annul the contested decision of 1 November 1983, in which the applicants' request to be engaged as temporary servants of the Community was rejected, for being contrary to the fundamental prohibition of discrimination on grounds of nationality and declare the relevant provisions of the Statutes annexed to Council Decision N o 78/471 inapplicable;