C-274/00

SIMON v COMMISSION

O P I N I O N OF ADVOCATE GENERAL JACOBS delivered on 25 September 2001 1

1. Mme Simon has appealed against the ECSC Treaty ('Article 55 ECSC). Mme judgment of the Court of First Instance Simon claims that in reality she was delivered on 10 May 2000 dismissing her employed by the Commission and that she application for annulment of the Commis- should be regarded as having been a sion's decision rejecting her claim for temporary agent of the Communities régularisation of her administrative situ- throughout the relevant period. ation and her application for symbolic damages of one euro for non-material damage. 2

The background to the judgment under appeal

7. On 16 January 1996, Mme Simon brought an action for unfair dismissal against the GFS and its director before the Luxembourg Labour Court. By letter dated 28 June 1996, Mme Simon submitted a 6. It appears from the judgment under request to the Commission pursuant to appeal that Mme Simon, who had been a Article 90(1) of the Staff Regulations ask- Community official at Grade C from 1957 ing that her work since 1966 be considered to 1960, was from 1966 to 1993 employed to be work carried out by a temporary in Luxembourg by several firms which had servant of the Communities. In support of been so contracted by the Commission. her request Mme Simon claimed that the According to the judgment under appeal, contracts of employment between her and from 1966 to 1980 Mme Simon was the supervisory agencies had as their sole employed successively by the Société des object the avoidance of the Conditions of sciences médicales, the Ligue luxembour- Employment of other servants of the Euro- geoise contre la tuberculose, the Société pean Communities. Mme Simon also d'ergonomie de langue française and the sought one euro in damages for the viol- Gesellschaft für Arbeitswissenschaft. From ation by the Commission of the duty of 1980, the supervisory agency employing care owed by it to her. Mme Simon was the Gesellschaft für Sicherheitswissenschaft ('the GFS'). Between 1 March 1993 and 14 January 1994, and then between 1 July and 30 No- vember 1994, Mme Simon was directly employed by the Commission under fixed term employment contracts subject to Lux- embourg law. Following a fresh contract 8. The Conditions of Employment to which between the Commission and the GFS for Mme Simon refers apply to all staff the period from 1 December 1994 to engaged by contract by the Communities, 31 August 1995, the GFS undertook to whether they are temporary staff, auxiliary coordinate and distribute the results of the staff, local staff or special advisers. 3 studies carried out under the Sixth Ergo- nomics Programme. Mme Simon was employed again by the GFS, for the same 3 — Article 1.

The procedure before the Court of First Instance

10. That time runs from the date of pub- lication of the act it if it is a measure of a 14. On 11 June 1997 the appellant brought an action before the Court of First Instance 4 — Article 83 of the Conditions. seeking the annulment of the Commission's

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OPINION OF MR JACOBS — CASE C-274/00 P

decision of 2 April 1997 and the payment mission officials from DG Social by the Commission of one euro compen- Affairs responsible for the ergonomics sation for the mental distress she had programmes; suffered and for the violation by the Com- mission of the duty of care owed to her.

(ii) her employment contributed to the realisation of one of the goals assigned to the Commission by the ECSC 15. Mme Simon alleged that the Commis- Treaty, namely safety at work in the sion had committed a misuse of power and coal and steel industries and the organi- abuse of process. She referred in support of sation for that purpose of cooperation that allegation to Mulfinger 5 and between research bodies; Deshormes, 6 according to which it is unlawful for the Community to conclude employment or service contracts under the law of a Member State where it chooses that contractual route in order to avoid the application of the Staff Regulations or the (iii) her remuneration — which was uni- Conditions governing the employment of laterally fixed by the Commission — other servants. showed that her work corresponded to that of a Commission official at Grade A5.

Communities'. Article 6 provides that each according to the case-law of the Court of institution shall determine who shall be Justice, that did not prevent her employer authorised to conclude the contracts from being the other party to the contract referred to in Article 1. It follows in the rather that a Community institution. 1 1The light of the case-law of the Court 8 that a Court of First Instance found, second, that person whose employer is not a Commu- Mme Simon's remuneration had been not nity institution but a legal person subject to set by the Commission but only subject to the law of a Member State, which cannot its approval. 12 It also dismissed as irrel- be treated as an administrative agency of evant arguments based on the similarities the institution in question, cannot be between Mme Simon's employment and regarded as a servant of the Communities. 9 that of a temporary servant of the Com- Mme Simon's work was carried out on the mission and on the finding of the Lux- basis of contracts of employment or for embourg Labour Court. 13 services between her and the supervisory agencies in question; those agencies were legal persons subject to German or Lux- embourg law and the contracts with Mme Simon were governed by Luxembourg law. The Court of First Instance accordingly concluded that during the period between 1966 and 1993, and between 1 December 1994 and 25 October 1995, Mme Simon's successive employers had been those agencies and not the Commission. 10

22. In her appeal Mme Simon requests the Court to:

— in the alternative, dismiss the appeal as unfounded;

— annul the judgment of the Court of First Instance;

— in the further alternative, in the event that the Court 'decides the impossible' and annuls the judgment of the Court of First Instance, remit the case to the — annul the Commission decision of Court of First Instance; 2 April 1997;

— order the appellant to pay the costs. — declare that the services provided by her between 15 May 1966 and 25 Oc- tober 1995 are to be regarded as provided by a temporary servant of the Commission;

Summary of the arguments of the parties

26. In that context the Court of First Instance should have examined the real aim of the Commission when it entrusted the official management of the Bureau to supervisory agencies having no recognised specific competence either in managing 28. Second, the Court of First Instance Community programmes or in the substan- should have examined the nature of the tive fields concerned. The supervisory links between on the one hand Mme Simon agencies were, as their description suggests, and on the other hand, first, the supervisory simply intended to supervise a unit which agencies and, second, the Commission. In was in fact set up and managed by high particular it should have assessed both level Community officials so as to enable whether the real relationship of employer the Community to fulfil its obligations and subordinate was between herself and under Article 55 ECSC. The Court how- the supervisory agencies or between herself ever did not examine all the evidence and the Commission and whether Mme adduced in order to ascertain whether it Simon's work fell within the definition of constituted sufficient objective, relevant permanent duties of the Community public and consistent proof that the Commission's service which the Treaties assign to the sole purpose in using the supervisory institutions.

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31. Article 113 of the Rules of Procedure of the Court of Justice provides that an (ii) annulment of the Commission's appeal may seek to set aside, in whole or in decision of 2 April 1997; part, the decision of the Court of First Instance, and may seek the same form of (iii) a declaration that the services provided 17 — Case C-18/91 P V. v Parliament [1992] ECR I-3997, by her between 15 May 1966 and paragraph 44 of the judgment. 25 October 1995 are to be regarded I - 6008

SIMON v COMMISSION

as provided by a temporary servant of 37. On that basis I consider that the appeal the Commission; and is in principle admissible in so far as it seeks annulment of the judgment of the Court of First Instance and the Commission's decision of 2 April 1997. (iv) costs.

34. The Commission's submission that the declaration sought by Mme Simon is inad- missible is in my view correct because such Substance a declaration was not sought before the Court of First Instance.

38. Mme Simon's first submission is to the effect that the Court of First Instance 35. The Commission also submits that the should have examined the lawfulness of appeal is inadmissible on the ground that it the contracts between the Commission and questions the findings of fact of the Court the successive supervisory agencies. In par- of First Instance. ticular it should have examined the real aim of the Commission in resorting to such agencies and should have made an assess- ment of the duties which they actually carried out.

40. In its judgment the Court of First Instance set out Mme Simon's plea that it was unlawful for the Community institu- tions to have recourse to contracts of employment or contracts for services sub- 42. Mme Simon's second submission is that ject to the law of a Member State if it chose the Court of First Instance should have that structure not on the basis of the needs examined the nature of the links between of the service but with a view to avoiding her and, first, the supervisory agencies and, the application of the Staff Regulations or second, the Commission. It seems to me the Conditions of employment of other however that the Court of First Instance did servants. 19 It explicitly dealt with that plea, indeed carefully examine those matters in noting that the Court of Justice had ruled paragraphs 43 and 44 of its judgment and that the Commission would be responsible was moreover correct in saying that that for a misuse of procedure if it determined argument is answered by Salerno. 23 Mme the terms of employment of a person Simon's second submission is accordingly recruited by means of a contract subject unfounded. to the law of a Member State not in the light of the needs of the service but with a view to avoiding the application of the Conditions of Employment. 2 0 The Court of First Instance continued by stating — correctly in my view — that that case-law was not applicable to the case before it precisely because the Commission was not a party to the contracts and hence could 43. Even however if this Court were to take not have abused its power in that con- the view that the judgment of the Court of nection. 21 First Instance could be faulted on either of the grounds put forward by Mme Simon, that would not necessarily mean that the 19 — Paragraph 25 of the judgment. judgment should be annulled. 20 — Case 123/84 Klein v Commission [19851 ECR 1907, paragraph 24 of the judgment; referred to in paragraph 46 of the judgment under appeal. 21 — Paragraphs 46 to 48 of the judgment of the Court of First 22 — Article 113, summarised in paragraph 31 above. Instance. 23 — Cited in note 8.

44. Mme Simon is in effect claiming that should the Commission's decision of 2 April she has been adversely affected because she 1997 be annulled. was employed by a series of supervisory agencies under a series of contracts of employment or for services from May 1966 to October 1995 whereas she should have been employed as a temporary agent by the Commission. It appears from the docu- ments before the Court that she raised that issue with the Commission for the first time in June 1996. Although there is no express time-limit for a request for a decision under 46. Even if the Commission were to decide Article 90(1) of the Staff Regulations, that Mme Simon should be recognised as Article 90(2) requires that a complaint having been a temporary agent during the against an act adversely affecting the claim- relevant period, what would be the practi- ant be lodged within three months. It may cal consequences for Mme Simon of that be that the Court would or should raise of decision? She is apparently not claiming its own motion the question whether it was that she would have been paid more as a open to Mme Simon to challenge a series of temporary agent; on the contrary, she contracts of employment going back more appears to rely on having been paid at the than 30 years before the complaint. It may same rate as a Commission official of be noted that the Court of First Instance grade A5 in support of her claim for recently dismissed applications by two recognition as a temporary agent. Nor auxiliary agents working for the Commis- apparently is she seeking financial com- sion and seeking declarations that they pensation: although her action before the should retrospectively be declared tempor- Court of First Instance included a claim for ary agents on the ground that the appli- damages, the amount claimed was the cations, not having been lodged within symbolic figure of one euro and she has three months from the creation of con- not appealed against that Court's rejection tractual relations with the Commission, of the claim. It was moreover stated at the were out of time. 24 hearing that, during the period in question, Mme Simon paid social security contribu- tions in Luxembourg; she is presumably therefore entitled to social security bene- fits — presumably including a pension — on that basis. Even however if Mme Simon, by virtue of being retroactively declared to have been a temporary agent, would thereby be entitled in principle to a pension 45. I would finally note that, even though a or medical insurance pursuant to the Com- direct question to this effect was put at the munity's schemes, any such claim in the hearing to her advocate, it is not clear what circumstances of the present case would benefit Mme Simon expects to receive appear to be insuperably complicated, since back-dated contributions to both the pen- sion fund and the sickness insurance 24 — Case T-375/00 Dubigh and Another v Commission, ECR- scheme would have to be made for periods SC I-A-159, II-733, order of 6 July 2001. See also by analogy Case T-192/99 Dunnen and Others v European during which she was already insured with investment Bank, ECR II-813, paragraphs 48 to 54 of the equivalent schemes in Luxembourg. judgment delivered on 6 March 2001.

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