C-286/83
ECLI:EU:C:1989:243
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OPINION OF MR MISCHO — CASE 286/83
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 15 June 1989 *
Mr President, countries, or who performed duties of Members of the Court, technical assistance or cooperation in such countries, asked the Court, when they bought the action, to recognize their status as officials, or alternatively as members of 1. You have before you today a case which the temporary staff, of the Commission with constitutes the third element of a long series effect from the date on which they were of actions which members of the staff of the engaged by the Association, which they European Association for Cooperation ('the consider to be a fictitious entity. Association') have brought, mainly against the Commission, and which all relate, in one way or another, to their transfer to the staff of the Commission. 5. They also wished, however, to retain the rights they had under the old scheme in so far as those rights should prove more advantageous than the rights arising from 2. Joined Cases 87, 130/77, 22/83 and 9 the application of the Staff Regulations, and 10/84 Salerno and Others v Commission which they were claiming. and Council, concerned the Association's headquarters staff. Joined Cases 66 to 68 and 136 to 140/83 Hattet and Others v Commission, concerned staff recruited by the Association under special contracts and 6. Since the Commission has in the seconded to the Commission. Case 119/83 meantime appointed the applicants as Appelhaum v Commission, constitutes a officials under Council Regulation No special instance of the second category of 3018/87 of 5 October 1987, ' the case now cases. concerns only the last-mentioned issue and the issue of the retroactive effect of their appointment.
3. In all the abovementioned cases the Court gave judgment on 11 July 1985 ([1985] ECR 2423, 2459, 2523). 7. Let me point out straight away that the Commission's objection that the action is inadmissible on the grounds that the applicants do not have the capacity to bring proceedings and that therefore the Court 4. In these proceedings, which concern a has no jurisdiction has already been rejected third category of the Association's staff, in Joined Cases 87 and 130/77 where the namely its overseas staff, 182 members of Court confirmed: the Association's staff who performed the duties of delegates, advisers or members of 1 — Council Regulation (Euratom, ECSC, EEC) No 3018/87 Commission delegations in developing of 5 October I987introducing special transitional measures for the recruitment of overseas staff of the European As sociation for Cooperation as officials of the European * Original language: French. Communities (OJ L 286, 9.10.1987, p. 1).
ALEXIS AND OTHERS v COMMISSION
'that it is not only persons who have the that it was for the Belgian courts alone to status of officials or of employees other decide whether its formation and func than local staff who may bring an action tioning complied with the criteria laid before the Court to contest a decision down in that legislation (paragraph 41). adversely affecting them but also persons Moreover, the Court expressly stated 'that it claiming that status' ([1985] ECR 2534, at was [the Association] and not the paragraph 24). Commission which was the applicants' employer' (paragraph 50). The Court therefore rejected the argument that the Association must be regarded as an adminis trative unit of the Commission or as a legal In any event, since the appointment of the fiction (see in particular paragraph 47). applicants as officials the admissibility of their action can no longer be challenged.
11. The applicants' own attitude confirms the correctness of the Court's reasoning.
8. The applicants' basic argument is that the Association is merely a fictitious entity or at 12. While maintaining that they have never least is only their apparent employer. Their been anything other than officials of the real employer is the Commission, of which Commission, they claim entitlement 'to the Association is merely an administrative continue to enjoy the rights they had under unit. In support of their argument they list a the rules which formerly applied to them in whole series of factors based on the so far as those rights should prove more relationships of all kinds which the As advantageous than those arising from the sociation maintained with the Commission application of the Staff Regulations of the and on the situation of the Association's European Communities or alternatively staff members which in many regards is from the conditions of employment identical to that of the Commission's governing members of the temporary staff officials or temporary staff. of the European Communities'.
13. If their rights were more advantageous 9. There is no doubt, as the Court has than those of officials and other employees already stated in paragraph 4 of the of the European Communities in so far as judgment in Appelbaum and paragraph 5 of they were in receipt of an expatriation the judgment in Hattet and Others, that the allowance, an overseas allowance, a rent Association operated primarily on the allowance, and so forth, it is because they instructions and under the control of the did not have the status of such officials or Commission. employees. Before the adoption of Council Regulation (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987 laying down special and exceptional provisions applicable to officials of the European Communities 2 10. Nevertheless, in its judgment in Salerno serving in a third country, officials were the Court stated that the Association was set not in fact entitled to those allowances. up under Belgian legislation as an inter national non-profit-making association and 2 — OJ L 286, 9.10.1987, p. 3.
OPINION OF MR MISCHO —CASE 286/83
14. It remains for me to say a word officials only in so far as they determined regarding the submission based on the the applicants' grade and step. In a later alleged discrimination suffered by the judgment the Court again stated that the applicants in comparison with members of observations made by the Court in those the Association's special contract staff and judgments headquarters staff, all of whom were estab lished well before the applicants. 'with regard to the different treatment received by the special contract staff 15. It is true that in the judgments in Hattet compared with that received by the staff of and Others v Commission and Appelbaum v the headquarters of the [Association] related Commission, the Court found that there had only to the determination of the applicants' been an infringement of the principle of grade and step by the decisions appointing equal treatment at the time when the As them as probationary officials and not to sociation's special contract staff and head the date from which those decisions took quarters staff had been recruited. In effect' (judgment of 5 October 1988 in particular the Court rejected the Joined Cases 314 and 315/86 De Szy-Tarisse Commission's defence that at the material and Feyaertsv Commission [1988] ECR 6013 time the Council had adopted measures at p. 6033, paragraph 17). derogating from the Staff Regulations permitting their recruitment only in respect of the headquarters staff (see in particular 17. However, in the present case, following paragraphs 26 to 30 of the judgment in their recruitment under Regulation No Appelbaum, at p. 2454). 3018/87, the applicants now challenge only the date on which their recruitment took 16. However, the Court annulled the effect, so that no breach of the principle of Commission's decisions appointing the equal treatment can be found in the context applicants as probationary officials and of these proceedings.
18. For all the above reasons , I propose that the Court should dismiss these applications as unfounded and order each party to pay its own costs in accordance with Article 69(2) and Article 70 of the Rules of Procedure .