C-432/85

My Lords, By letter of 24 August, her lawyer asked that the Selection Board should reconsider the matter since she was not relying on the exceptions (a), (b) or (c) but on the On 15 February 1985 the Commission paragraph quoted above relating to published in the Official Journal notice of continuous service with the Communities. an open competition COM/B/416 to constitute a reserve of administrative assistants in Category B Grades 5 and 4, whose duties would in particular include the By letter of 29 August she was told that her 'preparation of manuscripts as regards letter had been submitted to the Selection language and typography — proof-reading'. Board but they would not be able to re-examine the matter before mid-Sep­ tember. On 26 September a telegram was sent saying that the Selection Board main­ tained its decision not to admit her to the The special conditions included an tests because she was above the age-limit. age-limit. Candidates must have been born after 15 February 1949 and before 16 February 1967. The age-limit, however, was not to apply to candidates who 'on any date On 23 December 1985, she began these between publication of this Official Journal proceedings in which she asks that the of the European Communities and 29 March rejection of her candidature be annulled and 1985, will have been serving continuously as that she be awarded damages. an official or other servant of the European Communities for at least one year'. It also provided that the age-limit would be raised for candidates (a) who had looked after young children, (b) who had performed The Commission objects that she is out of military service, or (c) who suffered from a time. The rejection of her application was physical handicap. on 6 August; the proceedings began more that three months from that date. For that reason her action is inadmissible. The telegram of 26 September was 'a pure and simple' confirmation of the decision notified Mrs Souna, who was born on 1 November on 6 August 1985. 1948, i. e. three-and-a-half months before the earlier qualifying date, applied to enter the competition. On 6 August 1985 she was told that her application could not be This I do not accept. She plainly asked for a accepted since she did not fulfil the re-examination, in particular on the basis age-limit condition. Nor did she qualify for that she had been engaged in continuous one of the exceptions (a), (b) or (c) referred service as a servant of the European to above. Communities, a point not dealt with in the

The applicant criticizes the decision in question as being a breach of duty of good faith towards its staff, as not observing the The Commission's case on the substance is rules the Commission had itself laid down that Mrs Souna is not 'an official or other and as being discriminatory. She also says servant of the European Communities'. It that the decision fails to give any or any does not, however, rely on this to say that adequate reasons. the proceedings were inadmissible in that Article 179 of the Treaty, Article 91 of the Staff Regulations and Articles 46, 73 and 83 of the Conditions of Employment of Other Servants only give a right of application to the Court to an official or to the servants therein mentioned. It seems to me that on the practice of the Court the Commission was right not to take this point on admissi­ bility. In a number of cases the Court has The essential first question is whether she accepted that someone who is for the first had been 'serving continuously as an official time seeking to enter Community or other servant of the European employment and who wishes to challenge a Communities for at least one year' — a rejection during the competition procedure question involving both the amount and may do so and may benefit from the regularity of work done and the capacity in provisions of Article 70 of the Court's Rules which it was done.

SOUNA v COMMISSION

At the hearing the parties were not agreed 1982, 240.5; 1983, 238.5; 1984, 258.5; 1985 as to the amount and regularity of the work to July, 158.5. In the months when she did done, though the applicant had produced a less than 20 days (e. g. August 1981, 13 certificate from the Office for Official days; August 1982, 10 days) the difference Publications that she had worked from 13 seems explicable by the fact that she took October 1980 to 4 January 1981 for 402 holidays. The months she did more than 20 hours and from 7 January 1981 to 30 April days may be due to the fact that she worked 1984 had totalled 822 working days. They overtime or weekends, the extra hours being were accordingly asked to reply in writing amalgamated as working days, perhaps for to certain questions, their replies and payment purposes. comments being received finally on 4 February 1987.

OPINION OF SIR GORDON SLYNN —CASE 432/85

The Commission contends that the defi­ nition of servant in the Conditions is, in any temporary staff, event, exclusive. No one can be a servant unless he falls squarely within one of the auxiliary staff, four categories dealt with in the Conditions of Employment. On the arguments advanced in this case, I am not satisfied that local staff, this is right. Other contracts of employment as a servant may be possible which do not special advisers.' fit easily into the four categories defined. A

SOUNA v COMMISSION

The latter stresses the word 'free-lance'. I do not consider that the label is conclusive. Reading the 'conditions générales' as a The true nature of the relationship must be whole, and having regard to the method of

OPINION OF SIR GORDON SLYNN — CASE 432/85

payment, the provisions as to tax (which fell consider that this is too strict a view. She to be paid to national authorities rather than could not reasonably have been expected to to the Community), her exclusion from the challenge the notice at the outset, ordinary insurance provisions applicable to particularly as she contended that she was a servants, the fact that she had a right to servant. It was only when she was refused work only when asked to do so in the light admission to the competition on the basis of the needs of the office and could refuse that she was not an 'other servant' (as is any monthly assignment offered to her, it now made clear) that her real grievance seems to me (debatable though some of arose. I would, therefore, accept as these factors may be and despite the fact admissible her argument that she was being that she was willing to transfer from Athens discriminated against when she was refused to Luxembourg to continue her work) that the benefit of the age exemption. the intention of both parties was that she should retain her independent status and that her contract was not that of a servant.

The question to be decided is thus whether her position was, in a relevant way, similar to that of the 'other servants' who benefited Accordingly and despite the fact that there from the exemption. That involves asking are substantial differences between Mrs what is the real basis or justification for Souna's position and that of the free-lance granting the exemption, the ratio legis — a interpreter in Maag (e. g. the length and question which I do not think has been regularity of the periods worked, the ad hoc answered in argument. nature of the task and the fact that Mr Maag could be asked to work in different places for limited conferences or meetings) I have come to the conclusion that she has not shown that she was a 'servant' of the European Communities.

Another reason might be familiarity with the diligence in accordance with instructions working of the Commission, so that it and to respect the confidentiality of what would be of benefit to the Commission to she learned. By Clause VII (wrongly keep on a candidate with prior Community numbered in the original) she could be sent experience. Here again, Mrs Souna had away without reasons even during the such experience for five years on a virtually month, for serious professional fault or for full-time basis, and in the course of it trans­ failing to observe her instructions. Yet for ferred from Athens to Luxembourg. (Why five years she was kept on. she moved the Court is not told but it seems likely that she must have hoped for a long-term appointment; for all the Court knows this is the first competition for proof­ readers since she moved and it may be indi­ cative that 23 out of 48 free-lance proof­ readers applied for the competition.) She plainly had the necessary familiarity with the working of the Commission. Another reason may be suggested by Case 106/80 Foumierv Commission [1981] ECR 2759 where it was said that the outstanding characteristic of a contract for the employment of auxiliary staff was its 'precariousness in time' since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fulfil an urgent need or which are not At the hearing in answer to questions it was clearly defined. In the present context that suggested by the Commission that the can be no reason for distinguishing unfa­ reason for allowing other servants and vourably someone like Mrs Souna from officials to apply was that they had 'been auxiliary staff since her engagement was subject to Community discipline for a year, also precarious. On the contrary, the fact it is known that they are capable of working that for long periods, albeit precariously, whereas a free-lance is entirely inde­ she was fulfilling a need of the office for pendent'. I can see that, in a case where a which no post was available indicates that, if person works at home for an occasional anything, she deserves more rather than less month or week and is doing work which is favourable treatment compared with not effectively supervised, this may be a someone whose actual employment should justification for not applying the same rules not exceed one year. as those which are applied to a servant. That explanation does not, however, rule out a case where, month by month, the Commission had the opportunity not to invite Mrs Souna back, if not satisfied with her work, but doggedly did invite her back. The power not to invite her after each month seems to me in practice a potentially greater sanction than those which 'the The other cases cited in argument do not, it discipline' referred to makes available for seems to me, resolve the problem directly. officials. Moreover, she was required by In Case 16/81 Alaimo vCommission [1982] the 'conditions générales' to produce a ECR 1559 the applicant was accepted to be guarantee of good character, to pass an an employee. The sole question was whether aptitude test, to do her work with all she was an employee of the European

Communities when employed by the She was defacto a temporary official and so European Centre for the Development of her contracts were to be treated as having Vocational Training. It was held that she been entered into with a member of the was since the Centre was part of the temporary staff. Moreover, Mr Advocate European Communities. General Reischl took the view that the earlier contracts, although described as for an expert, were those revealing a regular relationship of employment to the Communities. Had there been no post available he would have regarded her as Reliance is placed on a sentence in Case being a member of the auxiliary staff for the 16/64 Rauch v Commission [1965] ECR purposes of deciding pension entitlement. 135: 'The expression "competition internal to the institution", taken as it stands, means any person employed by the institution in whatever capacity'. That must be seen in the context of the issue — namely, whether a member of the auxiliary staff could enter for such a competition. 'Whatever capacity' In Costacurta Mr Advocate General Roemer means, as I read it, whatever capacity as a dealt with a contention not considered by servant and does not include engagement as the Court that free-lance 'employees' of the an independent contractor. Office for Official Publications were wrongly admitted to the competition in question. He cited the passage from Rauch to which I have referred and he considered that the free-lance candidates had worked for many years and that it appeared that it In Case 78/71 Costacurta v Commission was only for budgetary reasons 'that they [1972] ECR 163, the sole point decided by were not put on a normal footing earlier'. the Court was that an internal competition He went on: 'It may thus be considered that must either state an age-limit or state that it as free-lance employees these candidates is not considered necessary to fix one. already stood in such a close relationship with the Office for Official Publications that they may be compared at least to auxiliary staff, that is to say the persons directly entitled to take part in the competitions'. Although that was an obiter dictum, since On the other hand, even if they do not the free-lance candidates were temporary decide the point directly, the cases do staff when applications for the competition indicate that the Court looks to the had to be made, it does indicate a will­ substance rather than to the legal form. ingness to look at the reality of the Thus in Case 17/78 Deshormes v situation. Commission [1979] ECR 189 the Court accepted that as from the date of her first appointment as a member of the auxiliary staff the applicant's agreement 'should have taken on the form of a contract of employment of a member of the temporary Again in Joined Cases 225 and 241/81 staff because the applicant had been Toledano Laredo v Commission [1983] ECR assigned to a permanent post appearing in 347 the Court ruled that a member of the the list of posts appended to the budget'. auxiliary staff who had performed well¬

defined Community public-service duties for different, therefore she is in a different which posts were generally available, was position and can be treated differently in for the purposes of the Community pension regard to the age exemption. The substance scheme entitled to count the period of such must be looked at. I accept that a person service as completed in the capacity of a who works infrequently or irregularly or on member of the temporary staff. special assignments is in a different position from a servant who works regularly. On the It is also to be noted that in Deshormes the other hand, one who provides services Court at page 201 said that in view of the full-time for five years is, in my opinion, in precariousness of the duties performed 'it is a comparable position to temporary staff or clear that the said conditions of employment auxiliary staff when it comes to granting an cannot be wrongfully used to assign such exemption from the age-limit. This may well staff to permanent duties for long periods, be an exceptional case but in my view the and thus employ them abnormally at the decision to exclude Mrs Souna because she cost of prolonged uncertainty'. I doubt was three-and-a-half months too old was whether, but for budgetary reasons, the discriminatory and unfair when regard is scheme of employment adopted by the had to the benefit accorded to temporary Communities really intended that people agents and auxiliary staff. The fact that in a should be employed 'free-lance' full-time, competition organized by the Parliament continuously and over a long period, if she was accorded the exemption (as the people are employed in this way, they Commission accepts the Parliament was should not in my view be prejudiced when it entitled to do) albeit the notice of compe­ comes to the age conditions relating to tition was limited to 'officials and other eligibility for a competition. servants', only goes to underline the unhappy result in the present case. In the light of the approach adopted in these cases it does not seem to me in the As a separate matter I would in any event present case to be sufficient merely to say, accept the applicant's argument that the as the Commission in reality does, that the decision gave no or no adequate reasons legal nature of Mrs Souna's contract is and is in that regard defective.