C-249/87
ECLI:EU:C:1989:382
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OPINION OF MR JACOBS —CASE C-249/87
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 17 October 1989 *
My Lords, consistent on which courts would have juris diction over any dispute, some specifying this Court and others the Belgian courts. In 1986, the Commission presented the teachers with a new standard-form contract of indefinite duration providing for 15 hours work per week for 33 weeks per 1. In this case seven language teachers academic year, for Belgian law to apply and complain at being engaged under contracts for the Belgian courts to have jurisdiction, with the Commission which expressly but this time specifically stating in exclude the possibility of their being Article 5(2) that: regarded as servants or other agents of the Communities, and claim that they should be employed under the Staff Regulations of Officials of the European Communities ('the Staff Regulations') or the Conditions of Employment of other Servants of the European Communities ('the Conditions of 'In the light of the nature of the duties to Employment'). which this contract relates, the contracting party may not be regarded as a servant of the Commission.'
2. All the applicants have, for a number of years, been teaching languages for the Commission to members of its staff. The The Commission states that there are arrangements have changed over the years. currently 23 language teachers engaged It appears that, at least at the beginning of under contracts of this kind. the 1980s, individual contracts were entered into for each language course to be given, but that from about 1983, following discussions between the Commission and the staff associations, more general contracts of indefinite duration were entered into so that teachers were engaged 3. The applicants protested at the inclusion to carry out such teaching tasks as might be of the clause cited above but the allocated to them, usually 33 weeks a year Commission insisted that the new contracts at 15 hours per week. The reason for this be signed without reservations and all the change appeared largely to be in order to applicants did so on or about 6 November bring the teachers within the Belgian social 1986, while writing separately to maintain security system. The contracts were stated their protests. On 6 February 1987 the to be subject to Belgian law, but were not applicants lodged a complaint against the
* Original language: English.
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contracts under Article 90(2) of the Staff the jurisdiction of the Court in staff cases, Regulations but, despite a reminder sent by refer to 'any person to whom these Staff the applicants on 19 May, no response was Regulations apply', and so do not explicitly forthcoming from the Commission within cover the present applicants, nevertheless the prescribed period of four months from there is no doubt about their standing to the date of the complaint. The application bring proceedings. Those words have been in the case was lodged at the Court on widely interpreted in many cases, and in 19 August 1987, seeking inter alia the Case 123/84 Klein v Commission [1985] annulment of the implied rejection of the ECR 1907, to which I shall refer further in complaint. In the meantime, the Com considering the substance of the case, the mission expressly rejected the complaint by Court stated that, according to a consistent letter dated 31 July, but it was apparently line of cases, provisions of the Staff Regu not received by the applicants until after lations may be relied upon before the Court, they had lodged their application. not only by officials or other servants of the Communities, but also by persons claiming to be such. Although in Case 43/84 Maag v Commission [1985] ECR 2581, also considered below, the Court held the 4. The applicants ask the Court, first, to application inadmissible, it did so only after annul the decision of the Commission to considering the substantive issue whether impose on the applicants the standard-form the applicant could claim to be considered contract of November 1986 and the implicit as a Community servant. That issue is one rejection of the applicants' complaint and, which must, in my view, be within the juris secondly, to order the Commission to diction of the Court. replace the contested contract by an arrangement covered by either the Staff Regulations or the Conditions of Employment.
7. Thirdly, one of the applicants, Mr Penella-Rom, has now commenced 5. Three points may be mentioned on the full-time employment with the Commission, admissibility of the application. First, as having been successful in an open compe regards the second head of the applicants' tition. However, no question arises as to the claim, it is plain that the Court has no juris continued admissibility of his application: he diction to make an order such as the one clearly still has an interest in proceeding sought by the applicants. Therefore that since his future rights, in particular his head of the claim is strictly speaking inad pension rights, may depend on whether or missible. However, if the Court were to not he could be regarded as an official or uphold the claim for annulment, the temporary servant prior to his present Commission would be required to take the employment. necessary measures to comply with the judgment in accordance with the principle stated in Article 176 of the EEC Treaty.
6. Secondly, while the terms of Articles 90 8. On the substance, the applicants rely on and 91 of the Staff Regulations, relating to four submissions, which I shall consider in
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the following order: first, infringement of person who has been appointed, as provided Article 212 of the EEC Treaty and/or Title for in these Staff Regulations, to an estab I of the Conditions of Employment; second, lished post on the staff of one of the misuse of procedure; third, infringement of institutions of the Communities by an the principle of the protection of legitimate instrument issued by the appointing expectations; and fourth, failure by the authority of that institution.' administration to fulfil its duty to have regard to the interest of its officials and other servants. Because they are inter related, it is in my view necessary to take 11. Title I of the Conditions of the first two submissions together. Employment comprises Articles 1 to 7a thereof, again under the heading 'General Provisions'. Article 1 in particular provides: 9. Article 212 of the EEC Treaty was in fact repealed by Article 24(2) of the Merger Treaty, and it appears that the applicants intend to refer to Article 24(1) of the latter, which provides: 'The Conditions of Employment shall apply to servants engaged under contract by the Communities. Such servants shall be: temporary staff, auxiliary staff, local staff, 'The officials and other servants of the special advisers.' European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community shall, at the date of entry into force of this Treaty, become officials and other servants 12. By their first submission the applicants of the European Communities and form contend that the above provisions provide part of the single administration of those only for officials and other servants and that Communities. there can be no other category of staff such as individuals employed under private law contracts of indefinite duration. They argue that therefore any persons providing services The Council shall, acting by a qualified to the Communities under such contracts majority on a proposal from the must be doing so either under the terms of Commission and after consulting the other the Staff Regulations or, under the terms of institutions concerned, lay down the Staff the Conditions of Employment. Regulations of officials of the European Communities and the Conditions of Employment of other servants of those Communities.' 13. In my opinion it is necessary, first, to consider whether there is an absolute prohibition on the Commission's entering 10. Title I of the Staff Regulations into a contractual relationship of the kind at comprises Articles 1 to 10a thereof, under issue in this case otherwise than under the the heading 'General Provisions'. The first Staff Regulations or the Conditions of paragraph of Article 1 provides: Employment. The answer in my view is clearly in the negative. The Commission has the capacity to enter into contracts (EEC 'For the purposes of these Staff Regulations Treaty, Article 211) and to agree that such "official of the Communities" means any contracts be governed by national law,
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whether public or private (EEC Treaty, 'Accordingly, the recruitment of Dr Klein Article 181; and see paragraph 11 of the by means of a contract which expressly judgment in Case 109/81 Pace, née Porta refers to Belgian law could not be regarded v Commission [1982] ECR 2469, at as contrary to Article 1 of the Conditions p. 2480). That capacity extends to contracts of Employment of Other Servants unless the for the provision of services outside the Commission had determined Dr Klein's Staff Regulations and the Conditions of terms of employment, not in the light of the Employment: see paragraphs 20 and 23 of needs of the service, but with a view to the judgment in Case 43/84 Maag avoiding the application of the said v Commission [1985] ECR 2581, at Conditions of Employment and so had been pp. 2601 and 2602; see also paragraphs 9 responsible for a misuse of procedure. and 13 of the judgment in Case 111/84 Institut national d'assurances sociales pour travailleurs indépendants v Cantisani [1985] ECR 2671, at pp. 2677 and 2678, para graphs 12 to 26 of the judgment in Klein Neither the documents on file nor the oral v Commission, already cited, at pp. 1916 proceedings have established that that was to 1918, and paragraphs 13 and 14 of in fact the case.' the judgment in Case 432/85 Souna v Commission [1987] ECR 2229, at p. 2247.
16. It follows that the Commission may enter into a contract of this kind outside the Conditions of Employment if that corre sponds to the needs of the service. It was 14. However, there are limits on the not proved that the contract in issue in the Commission's power to enter into contracts Klein case did not so correspond. Another for the provision of services outside the example is found in the Maag case in Staff Regulations and the Conditions of relation to free-lance interpreters. The needs Employment, and the next question is where of the service in question in that case were those limits fall in relation to the present described (at paragraph 16) as Occasional case. In this connection, it should be made needs which vary greatly according to the clear that the relationship arising between frequency of Community meetings and of an official and an institution under the Staff negotiations with non-member countries, Regulations is not contractual but statutory, where it is necessary to call on a large whereas the legal relations under the number of supplementary assistants whose Conditions of Employment are contractual. qualifications enable pressing needs to be met and who may be engaged time after time for very brief periods.' The contractual arrangements made to meet those needs outside the Conditions of Employment were also held to be lawful: see paragraph 20 of the judgment, loc. cit. 15. The Klein case concerned a contract for the engagement of a doctor to attend on the Commission's premises for 16 hours a week at an hourly fee. The Court upheld the lawfulness of that contract in the following terms (paragraphs 24 and 25 of the 17. On the other hand, if the relationship judgment): properly comes under one of the categories
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defined in the Conditions of Employment, it per week for 33 weeks in the year (or even would be a misuse of procedure to deal with if, as they claim, they work longer hours it under another of those categories or by a from time to time) cannot be regarded as contract altogether outside the Conditions working full-time within the meaning of the of Employment, if that were not required by Staff Regulations. Nor do the applicants fall the needs of the service but were a way of within the half-time provisions contained in avoiding the proper application of the Article 55a of and Annex IVa to the Staff Conditions: see Klein loc. cit.; and see Regulations. Those provisions are clearly Case 17/78 Deshormes v Commission envisaged as being for temporary periods [1979] ECR 189. This aspect of the and are expressly described as exceptional; question forms the subject-matter of the the applicants do not fall within the hours second submission (misuse of procedure). there described; and the relevant formalities have not been fulfilled. Those provisions would also deprive the applicants of the right to engage in any other paid activity, which they remain free to do under the contracts in question.
18. It is necessary to apply the above criteria to the facts of the present case and to consider whether the arrangements between the applicants and the Commission properly fall, having regard to the nature of the services provided, under the Staff Regu lations or under one of the categories defined in the Conditions of Employment; and whether those arrangements correspond 20. By Article 1 of the Conditions of to the needs of the institution or whether, Employment, cited above, those Conditions on the contrary, they are designed to apply to four categories of servants: exclude the application of the Staff Regu 'temporary staff, auxiliary staff, local staff, lations and the Conditions of Employment. special advisers.' Articles 2 to 5 lay down the precise meanings of each of those categories, and it is clear that the applicants' contracts do not come within any of them. They do not qualify as 'temporary staff', because they are plainly not assisting an office-holder under Article 2(c) and, since 19. It is plain at the outset that, under the their contracts are for an indefinite period, arrangements by which they work at they are not filling a post on a temporary present, the applicants do not fit into any of basis under Article 2(a), (b) or (d); see also the existing categories of staff falling within Maag, paragraph 17. They do not qualify as the Staff Regulations or Conditions of 'auxiliary staff' under the terms of Employment. They cannot be regarded as Articles 3 and 52 because, on the one hand, 'officials' within the meaning of Article 1 of they are not engaged to replace an official the Staff Regulations since they cannot or member of the temporary staff and, on claim any 'established post' under that the other, the actual period of their article. Moreover it is clear that in principle employment exceeds one year. They do not officials are those who occupy permanent qualify as 'local staff' as defined in full-time posts. As I shall seek to show, the Article 4, because they are not engaged for applicants working on the basis of 15 hours 'manual or service duties' but for intellectual
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tasks. Finally, they do not qualify as 'special niably of importance — are none the less advisers' under Article 5 because they have ancillary to the central tasks performed by not been engaged to assist the institution Community officials. concerned by reason of their 'special qualifi cations'. It should be noted that the French version of Article 5 speaks of 'qualifications exceptionnelles', and in the Maag case the 23. In a multilingual Community, it is Court recognized (at paragraph 8) that the obviously desirable that the staff of the position of special adviser was appropriate Community institutions should have a only in exceptional cases. knowledge of more than one of the languages of the Community. Indeed, the minimum requirements regarding know ledge of languages, laid down by Article 28(f) of the Staff Regulations and, 21. The fact that the applicants do not fall in respect of temporary staff, by within any of the existing categories of Article 12(2)(e) of the Conditions of officials or other servants does not, Employment, are: however, dispose of their submission. They can properly contend that the Commission was bound, if it was appropriate to do so, to alter the arrangements so as to bring them 'a thorough knowledge of one of the within those categories — for example by languages of the Communities and ... a offering, if appropriate, full-time em satisfactory knowledge of another language ployment — or even that the Commission of the Communities to the extent necessary ought to have proposed amendments to the for the performance of [the] duties'. Staff Regulations or Conditions of Employment so as to make provision for language teachers to be brought within them. The essential question remains Those are the minimum requirements, but whether the applicants could claim, by greater linguistic attainments are plainly reason of the nature of the services they desirable, or even necessary. provide, to be treated as officials or other servants of the Communities.
24. The applicants seek to rely upon the absolute necessity for Community officials to learn other languages in order to be able 22. In dealing with that question it is to fulfil their tasks. As was graphically necessary, in my view, to examine to what pointed out at the hearing, failure to extent the tasks carried out by the applicants communicate between officials would result are ancillary to the main functions of the in the Commission's Berlaymont Building institution, to what extent they can be becoming a tower of Babel. But the fact carried out on a full-time basis and to what remains that the primary tasks of officials of extent they respond to a permanent need of the Commission are the formulation and the institution. Even services which respond implementation of Community policy. Of to a permanent need of the institution can course, it is necessary for them to be able to in my view properly be secured by communicate with each other but it is also contractual arrangements outside the Staff necessary for them to eat, to be provided Regulations or Conditions of Employment, with an office, to remain healthy and so when the services in question — while unde forth. The Commission may properly
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contract out provision for staff restaurants tional duties. The applicants argue that they and office cleaning and, as has been seen in are, in effect, carrying out full-time duties. the Klein case, medical care. There seems to They suggest that, in addition to teaching be no reason why the Commission should for the period set out in their contracts, they not do the same in respect of language may undertake further individual teaching teaching for its officials: it could choose to assignments, sometimes under specific send its officials to a privately run language additional contracts, and also spend a school or alternatively contract out the considerable amount of time on such acti arrangements to a private firm. vities as preparing courses, marking scripts, evaluating courses and materials and coor dinating their activities among themselves. They suggested at the hearing that they worked for at least 22 to 27 hours per week (which it was said would make them the equivalent of full-time under Belgian law). However, this figure does not approach the 25. The fact that language teaching may be maximum of 42 hours per normal working regarded as ancillary to the official's normal week laid down by Article 55 of the Staff tasks is further illustrated by the fact that Regulations, nor the 37 space/1/2 hours per language teaching is carried out for about week which, following agreement with the half the time outside normal working hours: staff associations, officials normally work. in the morning, at lunchtime or in the Further, even though there may be tasks evening. In general, half the time spent in which certain teachers at present undertake attending language classes is attributed to outside the period for which they are under working hours and the other half to the contract, they are basically only engaged for officials' own time. For that reason, the 33 weeks in the year. hours of classes tend to be from 8.30 to 10.30 a. m., from 11.30 a. m. to 1.30 p. m. and from 4.30 to 6.30 p. m.; the classes are thus fitted in around the start of the working day, the lunchtime break and the end of the working day. An official will normally attend at one of those times once a week, or more often for the more intensive courses. Further, the periods during which classes are given to some extent follow 27. The Commission argues that the needs school terms with breaks at Christmas, for language teaching vary greatly from one Easter and in the summer. Therefore, period to another, and that must be so. language teaching within the Communities Plainly, some language teaching will always is unlikely to be anything but a part-time be required but the demand for particular and ancillary occupation. languages will vary according to the prevalent circumstances. Demand for a particular language may vary considerably according to circumstances such as the accession of new Member States, the amount of new recruitment or mobility and the desire of individual officials to learn or improve their knowledge of another 26. According to the Commission, most of language. It may well be right to say that the applicants teach for 12 hours per week, there is an element of permanence as with an additional three hours of educa regards the need, for example, to teach
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drafting in the working language or says that it is unable to find it and suggests languages of a particular institution that even if the document does exist it does (although, in time, even those may change), not reflect the true policy of the but it appears from the specimen contracts Commission. In my view, reliance on that submitted and from what was said by the document, which was not produced to the Commission at the hearing that such courses Court, is not sufficient to contradict the are very few in comparison to the general conclusion that the arrangements were language courses. The applicants do not made in the interests of the service.
I would claim that they are individually proficient in therefore reject the first two submissions in teaching all Community languages, and it this case. must therefore be recognized that, as the need for different languages arises, so does the need for different teachers. It must therefore be doubtful whether the services of a full-time teacher of one language will always be required. In that sense, therefore, 30. In their third submission, the applicants the task of an individual teacher may not be argue that they had a legitimate expectation regarded as permanent even if there is a that the various meetings of the staff associ permanent need for teaching in various ations with the Commission would lead to different languages. their being accepted as officials or other
servants. That submission can be disposed of shortly. As the Commission, in my view rightly, says, the fact of entering into nego tiations does not of itself guarantee a satis factory outcome and at no stage does it 28. I therefore conclude that, in view of the appear that the Commission held out the ancillary, part-time and impermanent nature specific prospect that the language teachers of the tasks in question, there was no would be given a specific status or requirement on the Commission to bring the contractual position as officials or other arrangements within the Staff Regulations servants. Indeed, the staff associations them or the Conditions of Employment and that selves were, at least until 1986, apparently for the same reasons the arrangements can content to accept that Belgian law should be regarded as corresponding to the needs govern the contracts and their main concern of the institution. until that stage was simply to ensure that the language teachers were appropriately covered for social security and other benefits. In those circumstances, it does not seem to me that any question of legitimate expectation arises.
29. Nor is there, in my view, sufficient evidence to suggest that the true aim of the current arrangements is to avoid the application of the Staff Regulations or the Conditions of Employment. In this regard, the applicants cite an internal document of 31. Finally, in their fourth submission, the the Commission which in their view tends to applicants suggest that the Commission is in suggest that the aim of the Commission is to breach of its duty to have regard to the avoid the possibility that the applicants interests of its staff. The applicants appear should ever become servants or agents of to rely mainly on an alleged breach of the the Communities. The Commission, while Commission's duty to provide adequate not denying the existence of this document, teaching for its staff, to the detriment of the
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staff. The Commission rightly objects that bringing such persons within the category of only the staff allegedly prejudiced can rely 'staff'. In relation to such persons the most on that alleged breach: see, for example, that in my opinion could be expected of the Case 85/82 Schloh v Council [1983] ECR Commission is to ensure that, where they 2105. In any event, there is nothing to work a substantial number of hours per suggest that the staff of the Commission week, the contractual arrangements should who are taught by the applicants are allow them to come within the national prejudiced by the fact that the applicants are social security scheme. If, as it appears, the not officials or other servants of the contracts in dispute here enable the Communities, or by the fact that the applicants to benefit from the Belgian social teaching is provided under the contracts in security system that in my view meets the issue in this case. substance of the applicants' complaint. The Commission stated, in reply to a question from the Court, that it pays by way of social security contributions an amount equal to 32. In so far as the applicants seek to 35% of the teachers' remuneration. The invoke a duty towards the applicants them applicants have not specified any further selves, I consider that any such duty is owed respects on which they consider that the only to staff in the strict sense and does not Commission has failed to have regard to extend to persons providing services under their interests. Consequently the final contracts outside the Staff Regulations and submission of the applicants must also be Conditions of Employment, still less to rejected.
33. Accordingly in my opinion the application should be dismissed as unfounded . In accordance with Article 70 of the Rules of Procedure , each side should be ordered to bear its own costs.