C-100/88

(i) staff employed in the developing 4. The applicants' chief concern, it would countries (Overseas staff); seem, is not so much their non-appointment as European officials per se, but their present situation with regard to their pension rights on retirement. The reason is (ii) headquarters staff, responsible for that because they are employed under an managing the overseas staff; employment contract by an association governed by Belgian private law, their * Original language: French. 1 — Joined Cases 87 and 130/77, 22/83, 9 and 10/84 Salerno retirement pension scheme is governed by and Others [1985) ECR 2523; Case 119/83 Appelbaum the Belgian law on pensions, and, under the [1985] ECR 2423; Joined Cases 66 to 68 and 136 to 140/83 Hallet and Others [1985] ECR 2459 relevant Belgian legislation, they would

OPINION OF MR DARMON —CASE C-100/88

5. Essentially, the applicants are asking the actions against the Administration Board's Court for a declaration that the Commission decision impliedly refusing to apply the has been their real employer with effect Staff Regulations of Officials in the case of from their recruitment by the EAC and that the applicants were admissible, since the they are entitled to the benefit of a applicants were seeking recognition that procedure for appointing them officials of they had been officials of the Commission the Commission. In the alternative, they ask since their engagement by the EAC.

7. The Commission's objections as to the amendment of the legal basis of the claim. admissibility of the application should not occupy the Court's attention for very long. I 2 — Judgment of 5 April 1979 in Case 116/78 Bellintani and Others [1979] ECR 1585, paragraph 6. would point out in the first place that 3 — See reference in note 1. according to the case-law of the Court 4 — Annex 5 to the application, p. 3, paragraph 10(a).

10. It remains to be considered whether, '[did] not . .. make it possible to ignore the independently of the legal rules, considered difference in law between the position of the in the abstract, of the cooperation staff EAC's staff, engaged by an association contract to which the applicants were established under private law, and that of subject, the conditions in which their duties the officials and other servants of the were performed put them in fact in the Commission, appointed under the Staff position of employees of the Commission. Regulations of Officials of the European The arguments put forward by the Communities', applicants in that regard are not conclusive in so far as they are similar to arguments which the Court has already considered in connection with the cases cited above, but before going on to say that which did not lead it to conclude that the Commission was the employer. Accordingly the reference to the provision in the specific 'it was the EAC and not the Commission terms of the applicants' contracts to the which was the applicants' employer'. effect that they are placed 'at the disposal of the Commission of the European Communities' or to the provision of one of In the judgment in Appelbaum, 6which was the general terms of the cooperation staff concerned with the situation of EAC special contract to the effect that they agree to contract staff, the Court stated, referring to undertake 'any research, mission or study the judgment of the same date in Salerno, which might be entrusted to [them] by the that the engagement and appointment by Commission ... ' is not conclusive, since the the Commission of EAC special contract judgments in Appelbaum and Hattet 7 were staff when it appointed them officials concerned with special contract staff who, constituted recruitment of staff 'from by definition, were also placed at the outside the institutions', which implies that disposal of the Commission and were 5 — Sec reference in note 1. 6 — See reference in note 1 7 — See reference in note 1.

14. The discussion of the second head of claim has been circumscribed to a certain 11. Likewise, the fact that the Courier extent by the arguments exchanged between appears in the establishment plan of the parties. The Commission does not DG VIII is not conclusive, since in the maintain that the legal regime of the judgment in Salerno the Court held that the cooperation staff contract to which the inclusion of the EAC in the Commission's applicants are subject was capable of establishment plan in no way proved that it justifying any difference in treatment, as far was an administrative unit of the as their appointment as officials was Commission. concerned, with respect to EAC special contract staff, all of whom were given the benefit of a procedure enabling them to be appointed officials. In a document 12. In fact, the applicants have produced no addressed to the Court the Commission evidence, and in particular no document, states in that regard that the distinction which shows that Commission officials, between the two types of staff member is acting as such and not in their capacity as 'essentially budgetary in nature', and adds members of the Administrative Board of the that the 'contracts governing employment EAC or as members of the editorial team of relations between the EAC and special the Courier, gave journalists instructions or contract or cooperation staff ... are largely effected formal acts of authority with similar and their duties, for any given grade, respect to them. In particular, the warning do not exhibit any marked difference'. 8 given to Mr Lucien Pagni, to which the applicants refer, was issued by a director of the EAC and not by a person in authority at the Commission. 15. In fact, the divergence of view between the applicants and the Commission is focused on one single point. According to the Commission, the very nature of the 13. Admittedly, there is absolutely no doubt duties of Mr Oyowe and Mr Traore, which that in various ways the Commission was consists in representing, in their capacity as closely associated with the functioning of journalists, the 'perspective of the ACP the EAC and that it in fact supervised countries' on the Courier, is incompatible manifold aspects of its activity and even, in with their having the status of Community certain respects, directed it. But, given those officials, which, under the Staff Regu­ constant facts, the Court considered that the lations, entails a duty of allegiance to the EAC was not an administrative unit of the Community. Commission and that the latter was not the employer of the staff recruited by the EAC. The applicants' situation in the specific context of the Courier does not give rise to 16. I shall say forthwith that consideration any new factor in comparison with the of the situation of the journalists of the general situation on which the Court has Courier has not brought me to the same already ruled. Consequently, I take the view that the Commission cannot be regarded as 8 — Observations of 18 April 1989 submitted in reply to a question put by the Court, p. 2.

conclusion as the Commission. It seems to serving a common cause, that of me that the journalists on the Courier were cooperation between the ACP States and in reality called upon to carry out their the Community'. duties in comparable conditions irrespective as to whether they were of ACP or EEC origin. Consequently, there was no special 18. Consequently when it comes to taking feature as regards the conditions in which into account the rules of professional they carried out their duties which justified conduct applicable to the journalists of ACP journalists 'of ACP origin' being treated origin working on the publication, it is hard differently, as regards their being appointed to find in the Minutes of the joint officials in the Community public service, committee meeting referred to by the from other journalists working on the Commission confirmation of the claim that Courier. those journalists have their own rules of professional conduct, distinct from those applying to the European journalists.

19. In those circumstances, the rules of professional conduct applicable to members 'The agreement makes it absolutely clear of the Courier's editorial team do not seem that the members of the Courier's editorial to me, on the face of it, to bear out the idea team who are of ACP origin are not here to that the journalists of ACP origin have the defend the points of view and interests of special characteristic of having to 'represent the ACP States any more than the European the ACP perspective' through their jour members of that team are here to defend nalistic activity. Can they be said to European points of view and interests. The represent that perspective symbolically by Courier is intended to provide facts reason of their national origin?

OPINION OF MR DARMON —CASE C-100/88

colour to these initial observations. A editorial team are subject, on the Courier, photocopy is annexed to the application of to the same rules of professional conduct, the latest issue (at that time) of the Courier, specifically as regards their independence the January-February 1988 issue. On page 3 with respect to ACP and European view­ there is the contents page. At the foot of points, the question as to whether or not that page there is written in small letters: journalists should have the status of officials 'The articles express the views of the should raise problems of the same degree authors only'. In the light of that notice it irrespective of the journalists' origin. In can be said that the articles printed in the sum, if the status of official is incompatible Courier — irrespective of their authors with being a member of a team of jour­ and, more precisely, irrespective of the nalists whose code of professional conduct geographical origin of their authors — do is as I have described it, then that must be not particularly express the views of the true of all the journalists. And if it is ACP countries more than those of the EEC considered, where an identical code of and are as binding on the ACP countries as professional conduct applies, that that they are on the EEC. incompatibility does not apply in the case of one or more journalists, it cannot be proved to apply in the case of the others.

OYOWE AND TRAORE v COMMISSION

special contract and another journalist that if all journalists, irrespective of their on that publication who was under a origin, are expected to show comparable cooperation contract can be made out from independence of view, it might not perhaps the conditions in which the journalists' be really necessary to recruit journalists duties were carried out, nor therefore can outside the EEC. I will add that in the event those conditions justify any difference in of posts falling vacant, as postulated by the treatment with regard to the appointment of Commission, the possibility might be staff as officials. contemplated of recruiting temporary staff to fill the posts in question and making an exception to the rule that staff must be nationals of one of the Member States.

. . he is a national of one of the countries. Member States of the Communities, unless an exception is authorized by the appointing 25. Having reached this stage in the authority . . . '. Whilst Mr Traore has reasoning, must it be considered that the French nationality, Mr Oyowe is a Nigerian second head of claim is well founded and national. It does not appear to me that he well founded with respect both to Mr can base an obligation on the part of the Traore and Mr Oyowe? In the judgment in Commission to authorize an exemption in Appelbaum 9 the Court held that there was his favour in respect of the nationality no essential difference between the position requirement on the identical situations of the headquarters staff and that of the argument considered above. It is, in my special contract staff justifying differing view, inherent in the nationality condition treatment with regard to the rules on the laid down in Article 28 (a) of the Staff Regulations that it should not have to be 9 — Sec reference in note 1 waived where a person who does not satisfy

it is in a situation which in other respects is and in particular the arguments developed identical or comparable to that of another by the Commission in the course of the person who fulfils that condition. To put procedure — with the objection based on any other construction on the nationality the nationality requirement being made condition would make it nugatory in somewhat late, namely not until the practice in so far as the administration rejoinder — that it has not been sufficiently would as a result be put under an obligation well made out that Mr Oyowe's lack of to authorize an exception from it in objec­ 'Community' nationality was the factor tively comparable cases, whose variety and which caused the Commission to adopt the limits could not be defined in advance. view that he should be denied any right to be appointed an official. More specifically, it has not been sufficiently made out that had the Commission realized that it was legally impossible for it to rely on the 27. I consider that in order for the argument about 'representing the ACP nationality requirement to have any perspective' in order to refuse to give Mr meaning and not be a mere formality, it Oyowe the benefit of a procedure for must be acknowledged that the appointing appointing him an official, it would have authority (the Commission in this case) has adopted the same position on the basis of an absolute discretion to decide whether or the nationality requirement alone. In my not it is appropriate to authorize an view, the Commission should re-examine exception thereto. The fact that a situation Mr Oyowe's position in the light of the is in other respects objectively identical analysis which I have proposed to the Court cannot place the appointing authority under of the alleged incompatibility of the status a legal obligation to authorize an exception. of Community official with the applicants' From that point of view, it does not appear task of 'representing the ACP perspective'. to me that authorizing an exception from The Commission should then consider in the nationality requirement can be put on all the course of that re-examination whether it fours with the question of derogating from takes the view that it should make an the general rule that appointments must be exception to the nationality requirement in made to the starting grade, which the the case of Mr Oyowe. Besides, the possi­ applicants raised on the basis of the Court's bility that by the time that re-examination 10 judgment in Appelbaum. The two dero­ takes place Mr Oyowe will have obtained gations apply to principles whose scope is Belgian nationality is not ruled out. manifestly not the same.

30. Consequently, as regards the second respect the Commission could be held to head of claim, I propose that the Court have been at fault in that regard. should annul the Commission's decision in Furthermore, in the light of the judgments so far as it refuses to take into consideration cited above in which the Court plainly the request of Mr Traore and Mr Oyowe to indicated that the Commission was not the be appointed officials, and remit the case to employer of staff recruited by the EAC, I the Commission for it to take the necessary cannot see how the applicants' situation action with regard to each applicant in the with regard to the Belgian legislation on light of the Court's judgment in accordance retirement pensions, to which it is normal with Article 176 of the Treaty; that should for them to be subject as employees of an entail, in any event, the implementation, as association governed by Belgian private law, regards Mr Traore, of a procedure leading could be linked with any conduct of the to his appointment as an official. Commission amounting to fault on its part. In practice, such a result could not be achieved without conflicting with the positions adopted in the Court's case-law with regard to the EAC and its staff. If the 31. My remarks on the last head of claim, applicants' employer is an association which I consider should be dismissed, will governed by Belgian private law, and not be more brief. I cannot see how the the Commission, it is impossible to see how Community could incur liability vis-à-vis the Communities could incur liability as a either of the applicants. The relevant claim result of the application to the persons is made in the alternative to cover the event­ concerned of the Belgian legislation on uality of the Court's dismissing the principal retirement pensions. If the Communities do claims of both or either of the applicants or, incur liability in that way then it is in other words, in the event of the Court's impossible to see how it could still be main­ holding in particular that the Commission tained that the Commission is not the has not infringed, to their detriment, the employer of the staff recruited by the EAC, principle of equality or non-discrimination. whereas that is what the Court has consis­ Consequently, it is hard to see in what tently held.