C-126/99

VITARI

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 6 July 2000 *

I. Introduction Central and Eastern Europe. It has its seat in Turin. 2

1. In order to answer the present question, referred for a preliminary ruling by the Pretura Circondariale di Torino (District Magistrates' Court, Turin) under Arti- cle 177 of the EC Treaty (now Article 234 EC), the Court must interpret the provi- II. The facts of the main proceedings and sions of Community law applicable to the the Italian legislation conditions of employment of local staff of the European Communities in the event that a Community entity refuses to renew their contracts of employment upon expiry of the contract term. 3. According to the information set out in the order for reference, the applicant was recruited by the Foundation as a member of the auxiliary staff with a fixed-term con- tract running from 16 October 1995 to 31 December 1995. That contract was 2. The proceedings before the national renewed for a second term from 1 January court are between Mr Roberto Vitari ('the 1996 to 29 February 1996. applicant') and the European Training Foundation ('the Foundation'), the Eur- opean Community body for which he worked, being employed initially as a member of the auxiliary staff and subse- quently as a member of the local staff. The Foundation was established by Council 4. On the expiry of the second term, the Regulation (EEC) No 1360/90, ! under applicant signed a new contract with the Article 235 of the EC Treaty (now Arti- Foundation, this time as a member of the cle 308 EC), and its objective is to con- local staff with a fixed-term contract from tribute to the development of the voca- 1 March 1996 to 31 December 1996, tional training systems of the countries of

which was subsequently renewed until Under Article 2 of the same Law, a fixed- 30 June 1997, the date on which the term contract may, exceptionally and with Foundation deemed its employment rela- the employee's prior consent, be extended tionship with the applicant to have ceased. once for a period not exceeding the dura- tion of the initial contract, provided that the extension is necessary due to contingent and unforeseeable circumstances and that it relates to performance of the same activity. In the event that the employment relation- ship continues beyond the time-limit pro- 5. Mr Vitari then lodged an application at vided, the contract will be deemed to run the Pretura Circondariale di Torino, since, for an indefinite period from the date on in his view, the Foundation did not have the which the initial fixed-term contract was right to terminate the employment relation- signed. 5 ship. While not denying the relevance of Community law in this matter, he submit- ted that Italian law applied, in particular Law No 230/62 of 18 April 1962 3 on the rules governing fixed-term employment contracts. 7. Relying on the aforementioned Italian statute, the applicant seeks a declaration from the Turin court that an employment relationship of indeterminate duration existed with effect from 1 March 1996, the date on which he was first engaged as a 6. Having laid down a presumption that member of the local staff. 6 employment contracts are entered into for an indefinite period, Article 1 of Law No 230/62 states that, a fixed-term con- tract may nevertheless be entered into in the cases set out therein. 4

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amended, laying down the rules governing following question to the Court for a the employment relationship between the preliminary ruling: institutions of the European Community and their officials and other staff, should apply to its own staff. It states that, consequently, the national rules of the Member State where the employment rela- tionship existed are not relevant and that 'Must Article 79 of Regulation (EEC) instead Community law alone should No 259/68, as subsequently amended, be apply. construed as meaning that the European institution is permitted to depart from national legislation with the consequence that rules of Community origin are alone applicable, or does it, in contrast, impose compliance with national legislation, parti- cularly if that national legislation is man- datory and binding in nature?' III. The question referred for a preliminary ruling

9. The national court states that it is IV. Community law accepted by the parties that the general Community rules, contained in Regulation No 259/68, as subsequently amended, are applicable to this case, in view of the supranational nature of the European 11. The rules governing local staff of Training Foundation as a Community Community institutions are set out in the entity. 'Conditions of Employment of Other Ser- vants' ('the Conditions'). 8

10. However, the national court indicates that, in the applicant's view, there is a 12. Under Article 1 of the Conditions: discrepancy between the applicable provi- sions of Community law and Law No 230/62, which lists exhaustively those cases in which a fixed-term contract may be imposed, setting out specific penalties in 'The conditions of employment shall apply the event that the legislation is infringed or to servants engaged under contract by the circumvented, in particular providing for a Communities. Such servants shall be: fixed-term relationship to be transformed ex tunc into a relationship for an indefinite period. Therefore, the national court deci- 8 — The Conditions are contained in Regulation No 259/68, ded to stay the proceedings and refer the cited in footnote 7 above.

(c) their remuneration 'For the purposes of these conditions of employment, "local staff" means staff engaged according to local practice for manual or service duties, assigned to a post not included in the list of posts appended to shall be determined by each institution in the section of the budget relating to each accordance with current rules and practice institution and paid from the total appro­ in the place where they are to perform their priations for the purpose under that section duties.' of the budget...'.

16. According to Article 80:

14. The provisions relating to local staff are set out in Title IV of the Conditions (Articles 79 to 81). 'As regards social security, the institution shall be responsible for the employer's 9 — In Council Regulation (ECSC, EEC, Euratom) No 2615/76 of 21 October 1976 amending Regulation (EEC, Euratom, share of the social security contributions ECSC) No 259/68 as regards the conditions of employment of other servants of the European Communities (OJ 1976 under current regulations in the place L 299, p. 1). where the servant is to perform his duties.'

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17. Finally, Article 81(1) states: The Foundation shall exercise over its staff the powers devolved to the appointing authority.

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21. The Rules also govern, inter alia, the pancy between Article 3 of the Rules and classification of local staff, their rights and Italian Law No 230/62. However, both the obligations, their conditions of employ- applicant and the Foundation have denied ment, remuneration, promotion to a higher in the observations they submitted to the grade, social security benefits, disciplinary Court that any such discrepancy exists. 12 action, appeal procedures and, in Arti- cle 26, termination of the contract. Under Article 26(1), a fixed-term contract comes to an end on expiry of the term stipulated therein.

24. In the applicant's view, Article 3 of the Rules and Article 1 of Law No 230/62 are identical, in that they both restrict the cases V. Procedure before the Court Of Justice in which a fixed-term contract may be concluded. Consequently, this case does not involve giving Community law priority over national law, or vice versa, but rather the application of both in such a way that they complement one another, as provided 22. The applicant in the main proceedings, for by Article 79 of the Conditions. the Foundation and the Commission sub- mitted written observations within the period prescribed for that purpose by Article 20 of the EC Statute of the Court of Justice.

25. The Foundation asserts that the ques- tion referred by the national court is irrelevant. In its opinion, it makes no sense VI. Consideration of the question referred in the present case to consider whether or for a preliminary ruling not Article 79 of the Conditions authorises Community institutions to dispense with national legislation, since the rules applic- able to local staff in Italy comply with the national rules governing fixed-term con- tracts of employment. The Foundation, in 23. As I stated above, the national judge has explained that the reference for a preliminary ruling arises from the fact that, 12 — The Commission did not cover this point in its observa- in the applicant's view, there is a discre- tions.

14 — I will point out, however, that, in my opinion, the answer to this question could be in the affirmative pursuant to the case-law of the Court, in particular Case 232/84 Commis- sion v Tordeurand Others [1985] ECR 3223, which I shall discuss later, and Case 50/74 Asmussen v Commission and 27. In the present case, it is clear, in my Council [19751 ECR 1003. In the latter case, on the subject of the former Article 94 of the Conditions, under opinion, that Article 3 of the Rules and which the Council had to determine the remuneration of establishment staff 'taking into account local practice', the Law No 230/62 reflect the same legislative Court held that '"local practice" need amount to no more option, namely the favouring of contracts than a motivation, that is to say, a simple guide-line which in no way excludes the taking into consideration of other for an indefinite term and the restricting of factors' and that: 'Thus, Article 94 confers on the compe- tent institutions a wide discretionary power to adapt the cases in which fixed-term contracts may be conditions relating to remuneration of the local staff and concluded. of the establishment staff to the particular local circum- stances of each of the establishments in question, taking into account the requirements which arise both from the internal working conditions of these establishments and from the considerations resulting from the economic and social situation within which the staff are placed' (para- 13 —See, for example, Case C-334/95 Krüger [1997] graphs 33 and 34 of the judgment). ECR I-4517, paragraph 22 of the judgment.

35. It should be emphasised that the Con- ditions lay down a clear distinction between the contracts of members of aux- iliary staff and those of member of local staff. In particular, the contracts of mem- 32. It is the responsibility of the Italian bers of the auxiliary staff are governed court, rather than this Court, to determine exclusively by Community law, 15 and dis- whether the circumstances or the nature of putes between such staff and the institu- the work carried out by the applicant tions for which they work fall within the justified his engagement under a fixed-term jurisdiction of the Court of Justice, as contract since, under Article 81 of the stipulated in Article 73 of the Conditions Conditions, disputes between the institu- which refers, for these purposes, to Title tion and a member of the local staff serving VII of the Staff Regulations. In short, any in a Member State are submitted to the disagreement which might arise between competent court in accordance with the the parties to the main proceedings con- laws in force in the place where the servant cerning the previous contract, under which performs his duties. In any event, the order the applicant was employed as a member of for reference contains no information the auxiliary staff, must be settled by the which would enable the Court to ascertain Court of Justice. whether the conditions laid down in the aforementioned provision of the Rules have been satisfied. 15 — Title III of the Conditions, Articles 51 to 78.

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36. It follows from the above that the case 39. Community rules do not prescribe any brought before the Turin court concerns penalties to cover this situation. As far as only the period during which the applicant Italian law is concerned, the only provision was employed by the Foundation as a cited by the national court in the order for member of the local staff which cannot, reference is Law No 230/62 which provides under any circumstances, be deemed to be that, in such a case, the contract will be an extension of the previous contract under deemed to have been entered into for an which he was employed as a member of the indefinite period with effect from the date auxiliary staff. on which it was signed.

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to engage servants under contract, whether the Community institutions of provisions they be temporary staff, auxiliary staff, of national law which, in the event of non- local staff or special advisers. compliance with certain national rules relating to temporary work, create a con- tract of employment of indeterminate dura- tion between the temporary worker and the user of his services.' 17

43. The Court went on to state that, while it is true that a temporary member cannot be denied social protection solely on the ground that he has been placed at the disposal of a Community institution, such 45. Although Tordeur concerned a fixed- protection cannot be provided by means term contract with a temporary worker and which would encroach upon the autonomy not, as in the present proceedings, a fixed- of the Community institutions. Conse- term contract with a member of the local quently, it is not possible for a contract of staff, the Court's reasoning can, in my view, employment with a Community institution, be applied in its entirety to the dispute a fortiori where the contract is of indeter- between Mr Vitari and the Foundation. minate duration, to come into being as a result not of a decision of the designated competent authority but of the fact, even where it is supported by a decision of a national court, that certain statutory provi- sions of the Member State in which that institution is situated which relate to tem- porary work have not been complied with. 46. Neither a rule of national law nor a judgment from a national court can oblige a Community institution or body to engage a local agent under a contract of indeter- minate duration. Therefore, if the referring court should find that there has been an infringement of Article 3 of the Rules, and 44. The Court held that: that it is appropriate to impose a penalty, it cannot order the Foundation to declare that the fixed-term contract which it entered into with a former member of its local staff has been transformed into an employment relationship for an indefinite period. 18

(2) If the national court should find that the European Training Foundation has infringed Article 3 of the aforementioned Rules, it may impose on the Community body which employed the worker whatever penalty it considers appropriate under national law. However, Article 6 of the Conditions of Employment of Other Servants precludes as a penalty the imposition of an employment relationship for an indefinite term between the local agent and the Community entity.

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