CELEX: 62001CJ0165
Staff Regulations of Officials of the European Communities
Conditions of Employment of Other Servants
Local staff
Representation of the Commission in Austria
Applicability of national legislation concerning the representation of workers and defence of their interests

By order of 14 March 2001, received at the Court on 18 April 2001, the Oberster Gerichtshof (Supreme Court) referred to the
Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9 of and Annex II to the
Staff Regulations of Officials of the European Communities and Article 79 of the Conditions of Employment of Other Servants
of the European Communities.
Those questions were raised in proceedings between the Betriebsrat der Vertretung der Europäischen Kommission in Österreich
(Works Council of the Representation of the European Commission in Austria,
the works council) and the European Communities, Commission of the European Communities, concerning the installation on the premises of the
Commission's representation in Vienna (Austria) of a monitoring device recording personal data of the persons employed by
the Commission.
Legal background
Community legislation
Articles 2 and 3 of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations
of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures
temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30) determine respectively
the Staff Regulations of Officials of the European Communities (
the Staff Regulations) and the Conditions of Employment of Other Servants of the European Communities (
the Conditions of Employment).
Under the first paragraph of Article 1 of the Staff Regulations: For the purposes of these Staff Regulations,
official of the Communities means any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff
of one of the institutions of the Communities by an instrument issued by the appointing authority of that institution.
Article 9 of the Staff Regulations, which appears in Title I,
General provisions, prescribes:
1.
There shall be set up:
(a)
within each institution:
─
a Staff Committee, which may be organised in sections for the different places of employment;
─
one or more Joint Committees, as appropriate for the number of officials at the places of employment;
─
one or more Disciplinary Boards, as appropriate for the number of officials at the places of employment;
─
a Reports Committee, if required;
(b)
for the Communities:
─
an Invalidity Committee;
which shall perform the functions assigned to them by these Staff Regulations.
1a.
For the application of certain provisions of these Staff Regulations, a common Joint Committee may be established for two
or more institutions.
2.
The composition and procedure of the bodies shall be determined by each institution in accordance with the provisions of Annex
II.
The members of these bodies shall be listed in the Monthly Staff Bulletin of the Communities.
3.
The Staff Committee shall represent the interests of the staff vis-à-vis their institution and maintain continuous contact
between the institution and the staff. It shall contribute to the smooth running of the service by providing a channel for
the expression of opinion by the staff.
It shall bring to the notice of the competent bodies of the institution any difficulty having general implications concerning
the interpretation and application of these Staff Regulations. It may be consulted on any difficulty of this kind.The Committee shall submit to the competent bodies of the institution suggestions concerning the organisation and operation
of the service and proposals for the improvement of staff working conditions or general living conditions.The Committee shall participate in the management and supervision of social welfare bodies set up by the institution in the
interests of its staff. It may, with the consent of the institution, set up such welfare services.
4.
In addition to the functions assigned to them by these Staff Regulations, the Joint Committee or Committees may be consulted
by the appointing authority or by the Staff Committee on questions of a general nature which either of the latter thinks fit
to submit.
5.
The opinion of the Reports Committee shall be sought:
(a)
on action following completion of probationary service;
(b)
on dismissals for incompetence; and
(c)
on the selection of staff to be affected by any reduction in the establishment.
The Committee shall ensure that the periodic reports on staff members are made in a uniform manner within any one institution.
Titles II to VII of the Staff Regulations lay down the rules on the rights and obligations of officials, their career (including
recruitment, promotion and termination of service), working conditions (hours of work, leave, holidays), emoluments and social
security (in particular remuneration and social security benefits), disciplinary measures and appeals available to officials.
Annex II to the Staff Regulations contains the rules on the composition and procedure of the bodies provided for in Article
9.
Article 1 of Annex II, which forms Section 1 of the annex, headed
Staff Committee, provides: The Staff Committee shall comprise the members thereof, together with their alternates, if any, whose term of office shall
be three years. The institution may, however, decide to fix a shorter term of office, which may not be less than one year.
Every official of the institution shall be entitled to vote and stand for election.The conditions for election to the Staff Committee if it is not organised in local sections, or to the local section, if the
Staff Committee is organised in local sections, shall be laid down by the general meeting of officials of the institution
in service at the relevant place of employment. Election shall be by secret ballot.If the Staff Committee is organised in local sections, the manner in which the members of the Central Committee are appointed
for each place of employment shall be laid down by the general meeting of officials of the institution in service at the relevant
place of employment. Only members of the local section concerned may be appointed members of the Central Committee.Membership of the Staff Committee if it is not organised in local sections, or of the local section if the Staff Committee
is organised in local sections, shall be such as to ensure the representation of all categories of officials and of all services
provided for in Article 5 of the Staff Regulations and also of the servants referred to in the first paragraph of Article
7 of the Conditions of Employment of other servants of the Communities. The Central Committee of a Staff Committee organised
in local sections shall be validly constituted upon appointment of a majority of its members.Elections to the Staff Committee if it is not organised in local sections, or to the local section if the Staff Committee
is organised in local sections, shall be valid only if two thirds of the officials entitled to vote take part. However, if
this proportion is not attained, the second vote shall be valid if the majority of those entitled take part.The duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under
the Staff Regulations or by the institution shall be deemed to be part of their normal service in their institution. The fact
of performing such duties shall in no way be prejudicial to the person concerned.
Sections 2, 3, 4 and 5 of Annex II to the Staff Regulations govern respectively the composition and operation of the Joint
Committees, the Disciplinary Board, the Invalidity Committee and the Reports Committee. The Joint Committees and the Disciplinary
Committee include members nominated by the Staff Committee.
By virtue of the Rules laying down the Composition and Operation of the Staff Committee, adopted by the Commission pursuant
to Article 9(2) of and Annex II to the Staff Regulations, the Staff Committee of the Commission consists of a central committee
and several local sections, corresponding to the various places of employment of the staff of that institution. The members
of the central committee are nominated by the various local sections from among their members. The members of each local section
are elected by the officials and other servants referred to in Article 7 of the Conditions of Employment. Officials and other
servants who are not attached to a particular local section are represented by the local section of Brussels (Belgium). As
there is no section specifically for the staff working in Vienna, they are represented by the Brussels local section, and
so take part in that section's elections. The procedures for elections to local sections and the central committee are laid
down by the general meeting of Commission officials, so as to ensure that officials of all categories and services and the
other servants referred to in the first paragraph of Article 7 of the Conditions of Employment are represented on the central
committee and, as far as possible, in each local section.
The Conditions of Employment apply, as laid down in Article 1, to all servants engaged under contract by the Communities.
That provision distinguishes between temporary staff, auxiliary staff, local staff and special advisers.
The first paragraph of Article 4 of the Conditions of Employment provides: 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 the section of the budget relating to each institution and paid from the total appropriations for the
purpose under that section of the budget. By way of exception, staff engaged to perform executive duties at the Press and
Information Offices of the Commission of the European Communities may also be regarded as local staff.
Article 7 of the Conditions of Employment, which forms part of Title I,
General provisions, provides: A servant whose contract is for more than one year or for an indefinite period shall be entitled to vote in elections and
stand for election to the Staff Committee provided for in Article 9 of the Staff Regulations.A servant whose contract is for less than one year shall also be entitled to vote if he has been employed for at least six
months.The Joint Committee provided for in Article 9 of the Staff Regulations may be consulted by the institution or by the Staff
Committee on questions of a general nature relating to servants to whom Article 1 applies.
Titles II (Articles 8 to 50a) and III (Articles 51 to 78) of the Conditions of Employment lay down the rules applicable to
temporary staff and auxiliary staff respectively, concerning in particular their rights and obligations, conditions of engagement,
working conditions including holidays, remuneration, social security benefits, appeals and termination of employment.
Title IV of the Conditions of Employment, headed
Local staff, contains the following provisions:
Article 79
Subject to the provisions of this Title, the conditions of employment of local staff, in particular:
(a)
the manner of their engagement and termination of their contract;
(b)
their leave; and
(c)
their remuneration
shall be determined by each institution in accordance with current rules and practice in the place where they are to perform
their duties.
Article 80
As regards social security, the institution shall be responsible for the employer's share of the social security contributions
under current regulations in the place where the servant is to perform his duties.
Article 81
1. Any dispute between the institution and a member of the local staff serving in a Member State shall be submitted to the
competent court in accordance with the laws in force in the place where the servant performs his duties.2. Any dispute between the institution and a member of the local staff serving in a third country shall be submitted to an
arbitration board under the conditions defined in the arbitration clause contained in the servant's contract.
On the basis
inter alia
of Articles 4, 79, 80 and 81 of the Conditions of Employment, the Commission on 21 November 1989, after consulting the Staff
Committee, adopted framework rules determining the conditions of employment of local staff of the Commission of the European
Communities serving in third countries. The framework rules entered into force on 1 January 1990, but are applicable only
from the coming into effect of the special conditions of application drawn up for each place of employment.
Article 1 of the rules fixing the special conditions of employment of local staff serving in Austria (
the special rules for Austria), adopted in 1994 after consulting the central committee of the Staff Committee, provides: These rules determine the special conditions of employment of local staff of the Commission of the European Communities serving
in Austria who have contracts for a definite or indefinite period or are regarded as such under Austrian legislation.The legal provisions of the present rules are to apply without prejudice to more favourable mandatory Austrian legislation.
Like Titles II and III of the Conditions of Employment applicable to temporary staff and auxiliary staff, the special rules
for Austria contain provisions relating
inter alia
to the conditions of engagement of local staff, their career, rights and obligations, working conditions including holidays,
remuneration, social security benefits, termination of contracts, and appeals available to them.
It follows from the Commission's reply to a written question put by the Court that the special rules for Austria have continued
to apply to local staff of the Commission's representation in Vienna even after the accession of the Republic of Austria to
the European Union.
National legislation
The order for reference gives the following account of the national legal background: In Austria the term
Arbeitsverfassungsrecht
(labour relations law) is understood to mean that part of employment law which concerns the organisation, tasks, powers and
mutual relations (disputes and collective agreements) of the representation of workers in a sector or an establishment, on
the one hand, and the representation of the interests of employers in a sector or of individual employers, on the other, and
collective legal regulation by other employment law bodies ... .The main source of labour relations law is the [Bundesgesetz betreffend die Arbeitsverfassung (Arbeitsverfassungsgesetz) (Federal
law on labour relations,
the ArbVG) of 13 December 1973]. Its provisions govern three core areas of labour relations, that is to say, collective legal regulation
(collective sources of law) in sectors and establishments (Part I of the ArbVG), labour relations in establishments (
Betriebsverfassung
) (Part II of the ArbVG and the rules on labour relations at European level in Part V) and the organisation, competence and
procedure of those authorities and offices which hear disputes over laws and rules in labour relations law in establishments
and deal with other administrative matters (Part III of the ArbVG ...).The part of the ArbVG governing labour relations in establishments includes all the provisions which give the staff of an
establishment (undertaking, group) a legal organisation, define duties and grant powers mainly as against the proprietor of
the establishment. Those provisions are based on the notion that workers should participate in the affairs of the establishment.
In this connection the provisions on labour relations in establishments in the ArbVG presume the existence of two groups of
persons with opposing interests (proprietor of the establishment and staff) and allow the staff various powers ... ....Part II of the ArbVG (labour relations in establishments) applies pursuant to Paragraph 33(1) to
establishments of all types, establishment being defined in Paragraph 34(1) as any place of work
which forms an organisational unit within which a natural or legal person or a community of persons permanently pursues the
achievement of specific results of labour by technical or non-material means, whether with a view to profit or not.The territoriality principle determines the scope of the rules in the ArbVG on labour relations in establishments: every place
of work located in Austria is therefore covered by the ArbVG and is therefore ─ where the other conditions are met ─ subject
to the obligation to set up a works council ... .According to Paragraph 33(2)(2) of the ArbVG, however,
authorities, offices and other administrative entities of the Federation, the
Länder
, associations of municipalities, and municipalities do not fall within the provisions of Part II of that law. Instead, the laws on staff representation of the Federation or
the individual
Länder
apply to the institutions which are exempted by that provision. ...Under Paragraph 40(1) of the ArbVG, in every establishment in which at least five (within the meaning of Paragraph 49(1) of
the ArbVG) workers entitled to vote are permanently employed, the workforce bodies required by the other provisions of Part
II of the ArbVG are to be set up. The most important such body is the works council (
Betriebsrat
) (Paragraph 50 et seq. of the ArbVG).The powers of the workforce to be exercised by the works council are laid down in the third chapter of Part II of the ArbVG
(Paragraph 89 et seq. of the ArbVG). These include the rights laid down in sections 1 and 2 of the third chapter, such as
the right to monitor compliance with the legal provisions concerning the employees of the establishment (Paragraph 89 of the
ArbVG), the right to ask for appropriate measures to be taken and defects to be remedied in all matters concerning the interests
of the employees (Paragraph 90 of the ArbVG), the right to general information from the proprietor of the establishment (Paragraph
91 of the ArbVG) ... . Paragraphs 96 (
mandatory co-decision) and Paragraph 96a (
necessary co-decision) of the ArbVG lay down a series of measures which require the approval of the works council in order to take effect in law;
for measures under paragraph 96a of the ArbVG, the approval of the works council can be replaced, under subparagraph 2 thereof,
by decisions of an arbitration body. Paragraph 97(1)(1) to (6a) in conjunction with Paragraph 97(2) of the ArbVG regulates
cases of
enforceable co-decision in which, in the absence of a works agreement, the measure sought may, following an application to the arbitration body,
be replaced by a decision of that body, whereas in the cases of
optional co-decision listed in Paragraph 97(1)(7) to (23a) and (25) of the ArbVG the measure sought cannot be adopted in the absence of a works
agreement ... .In section 3 of the third chapter of Part II of the ArbVG, rules are laid down on the right of participation of the works
council in staff matters, namely rights of information (Paragraph 98 of the ArbVG) and rights of participation in the engagement
of employees (Paragraph 99 of the ArbVG), the determination of remuneration in individual cases (Paragraph 100 of the ArbVG),
transfers (Paragraph 101 of the ArbVG), the imposition of disciplinary measures (Paragraph 102 of the ArbVG), the allocation
of works housing (Paragraph 103 of the ArbVG), promotions (Paragraph 104 of the ArbVG) and the termination by agreement of
employment relationships (Paragraph 104a of the ArbVG). Provisions in this section to be emphasised are above all Paragraphs
105 and 106 of the ArbVG, which, in connection with termination of contracts and dismissal of employees, give the works council
... the possibility under certain conditions of bringing legal proceedings against terminations of contracts (dismissals)
on the ground of reprehensible reasons (Paragraph 105(3)(1) of the ArbVG) or because they are socially unjustified (Paragraph
105(3)(2) of the ArbVG). ......Paragraph 53 of the [Bundesgesetz über die Arbeits- und Sozialgerichtsarbeit (Arbeits- und Sozialgerichtsgesetz) (Federal
law on the work of labour and social courts,
the ASGG) of 7 March 1985] grants the works council capacity to be a party to proceedings. This legal provision is to be understood
in the sense of a confirmation of the general capacity to be a party to proceedings of the works council in matters relating
to employment law ... . Paragraph 54(1) of the ASGG gives the works council the right, within its sphere of operation, to
sue or be sued in proceedings to establish the existence or non-existence of rights or legal relationships affecting at least
three employees of the establishment or undertaking.
The order for reference also discloses that the works proprietor's obligation under Paragraph 91 of the ArbVG to provide the
works council with information on all matters which concern the economic, social, health or cultural interests of the employees
of the establishment may be enforced by legal proceedings. Moreover, under Paragraph 96a of the ArbVG, the
introduction of systems for the automatic recording, processing and transfer of personal data on employees, going beyond the
recording of general details about the person and occupational qualifications is among the measures which are subject to the approval of the works council. However,
approval is not necessary where the actual or proposed use of such data does not go beyond the fulfilment of obligations under
the law, the rules of collective legal regulation or an employment contract. Where the approval of the works council is required, it must be in the form of a (written) works agreement. If no agreement
is reached between the works council and the works proprietor, the proprietor can have an arrangement adopted by using the
arbitration body. If the employer takes the measure without securing the approval of the arbitration body or the works council,
the works council can have the measure annulled by the courts.
The main proceedings and the questions referred for a preliminary ruling
On 12 March 1998 a works council was elected, pursuant to the provisions of the ArbVG, by the local staff of the Commission's
representation in Vienna. The latter, which was informed without delay of the election and the immediately following constitution
of the works council, did not contest the election. In the order for reference, the national court states that the chairman
and vice-chairman of the works council are regarded by the Commission's representation in Vienna as the local representatives
of the local staff.
In February 1999 elections were held for the Staff Committee of the Commission, within the meaning of Article 9 of the Staff
Regulations. The local staff working in the Commission's representation in Vienna took part in the election. None of them
was elected to the Staff Committee.
At the end of October 1998, the works council learnt of the existence of a monitoring device which allowed personal data on
the employees to be recorded, since, to gain access to the office, they had to use a personalised microchip card and enter
a code.
The works council, taking the view that the rights conferred on it by Paragraphs 91 and 96a of the ArbVG had been infringed
by the Commission when the device was installed and used, brought proceedings in the Austrian courts seeking an order that
the Commission, first, inform it which personal data concerning employees is automatically recorded and how that data is processed
and communicated and, second, dismantle all equipment for recording personal data of employees installed unlawfully in the
absence of approval by the works council.
The Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) (Austria), at first instance, dismissed the application
inter alia
on the ground that, by virtue of the primacy of Community law, in particular Article 9 of the Staff Regulations, the provisions
of the ArbVG did not apply and the election of the works council was therefore null and void, so that it did not have capacity
to be a party or to bring proceedings.
The Oberlandesgericht Wien (Higher Regional Court, Vienna) (Austria), on appeal, upheld that decision, again essentially on
the ground of the primacy of Community law, which precluded the coexistence within the Community institutions of a staff committee
within the meaning of Article 9 of the Staff Regulations, which, as an internal body, lacked the necessary legal personality
and capacity to being proceedings itself, and a body emanating from the staff, such as the works council within the meaning
of the ArbVG, with capacity to bring proceedings under Paragraph 53 of the ASGG.
The works council appealed on a point of law (
Revision
) against the judgment of the Oberlandesgericht Wien to the Oberster Gerichtshof. Regarding it as clear that the Commission's
representation in Vienna does not fall within the exception under Paragraph 33(2)(2) of the ArbVG, that it constitutes an
establishment within the meaning of Paragraph 34(1) of that law and that it permanently employs at least five workers entitled
to vote within the meaning of Paragraph 49(1) of that law, the Oberster Gerichtshof considers that the representation is obliged
to set up a works council in accordance with Paragraph 40(1) of the ArbVG, if Part II of the ArbVG applies to it.
Observing in that connection that the Court has not yet ruled on whether Article 79 of the Conditions of Employment refers
also to legislation such as Part II of the ArbVG, or on whether the provisions of the Staff Regulations relating to the Staff
Committee are capable of restricting the application of that national law, the Oberster Gerichtshof decided to stay the proceedings
and refer the following questions to the Court for a preliminary ruling:
1.
Is Article 79 of the Conditions of Employment (Article 3 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February
1968), under which the conditions of employment of local staff, in particular (a) the details of their engagement and termination
of their contract, (b) their leave, and (c) their remuneration, are to be determined by each institution in accordance with
current rules and practice in the place where they are to perform their duties, to be understood as a reference to the relevant
national law on employment, which, in the case of Austria, also requires the application of the law on labour relations in
establishments laid down in Part II of the ArbVG?
2.
Are the provisions of Article 9 of the Staff Regulations (Article 2 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of
29 February 1968) and those of Annex II to the Staff Regulations concerning the Staff Committee, which is also responasible
for representing the local staff of the Communities, to be interpreted as laying down exhaustive rules on collective employment
law and the rights of co-decision of local staff and thus as precluding the application of the rules on labour relations in
establishments laid down in the ArbVG to local staff serving in the representation of the Commission of the European Communities
in Vienna?
The questions referred for a preliminary ruling
Since the two questions are closely connected, they should be examined together.
To answer the questions, it should be noted, first, that Article 9(1) of the Staff Regulations provides for a staff committee
to be set up within each Community institution. In accordance with the first subparagraph of Article 9(3), that staff committee
represents the interests of the staff
vis-à-vis
the institution concerned, maintaining continuous contact between the institution and the staff, and contributes to the smooth
running of the service of the institution by providing a channel for the expression of opinion by the staff.
For the purpose of carrying out that function of representing the interests of the staff, the Staff Committee, under the second,
third and fourth subparagraphs of Article 9(3) of the Staff Regulations, has the right to bring matters to the notice of the
competent bodies of the institution concerned and to be consulted by them on any difficulty having general implications concerning
the interpretation and application of the Staff Regulations, the right to make suggestions of any sort concerning the organisation
and operation of the service of that institution or for the improvement of staff working conditions or general living conditions,
and the right to participate in the management and supervision of social welfare bodies set up by that institution in the
interests of its staff. Moreover, in accordance with the provisions of Section 2 of Annex II to the Staff Regulations, persons
nominated by the Staff Committee are members of the joint committee or committees within each institution and, under Article
9(4) of the Staff Regulations, those committees may be consulted on questions of a general nature which either the appointing
authority or the Staff Committee itself thinks fit to submit.
It should also be noted that, under Article 7 of the Conditions of Employment, staff engaged under contract by the Communities,
including local staff, are entitled, subject to certain conditions concerning the length of their contracts or the period
for which they have actually been employed, to vote in elections for the Staff Committee of the institution which has engaged
them and to stand for election to that committee, on the same basis as all officials of that institution.
Next, the fourth paragraph of Article 1 of Annex II to the Staff Regulations prescribes that the membership of the staff committee
of each institution, or of its local sections if it is divided into local sections, must be such as to ensure the representation
of all the staff referred to in the first paragraph of Article 7 of the Conditions of Employment, including local staff with
contracts for more than one year or for an indefinite period. It follows from paragraph 10 above that the Commission expressly
reiterated that obligation in the Rules laying down the Composition and Operation of the Staff Committee which it adopted
pursuant to Article 9(2) of and Annex II to the Staff Regulations.
It follows from the above that, by adopting Regulation No 259/68, the Community legislature ensured that local staff are able
to take part in representing the interests of the staff of the institution which has engaged them, on the same terms of staff
representation as those it established for the benefit of officials of the European Communities and the other staff covered
by the Conditions of Employment.
In those circumstances, it must be examined, second, whether Article 79 of the Conditions of Employment must be interpreted
as allowing, or indeed requiring, the local staff of an institution also to enjoy the right to take part in representing their
interests under the national legislation in force in the Member State where they are to perform their duties.
To determine for this purpose whether, having regard to the use of the words
in particular in Article 79 of the Conditions of Employment, the arrangements for the representation and defence of the interests of local
staff are also included in the
conditions of employment within the meaning of that provision, the latter expression must be placed in its context and interpreted in terms of the
spirit of the provision and the structure of the Conditions of Employment of which it forms part.
First of all, Article 79 of the Conditions of Employment provides that, subject to the other provisions of Title IV relating
to the social security arrangements applicable to local staff and the settlement of disputes between them and their institution,
the conditions of employment of local staff are to be determined by each institution in accordance with current rules and
practice in the place where they are to perform their duties.
As the Court held in Case C-126/99
Vitari
[2000] ECR I-9425, paragraph 23, it follows that the national law of the State in which a member of the local staff performs
his duties is not applicable as it stands to the employment relationship between a Community institution and a member of the
local staff.
Next, the Conditions of Employment are divided into several titles, the first of which, as its heading shows, contains general
provisions applicable to all categories of staff referred to in Article 1 of the Conditions of Employment, while the following
titles lay down the specific rules applicable to each of those categories.
It is clear, first, that the conditions under which contract staff may vote for and be elected to the Staff Committee are
laid down in Article 7 of the Conditions of Employment, which, since it forms part of Title I, applies to all the staff covered
by the Conditions of Employment.
Second, while Titles II and III of the Conditions of Employment, relating to temporary staff and auxiliary staff, define in
detail the rules applicable to those staff as regards
inter alia
their conditions of engagement and termination of employment, working conditions including holidays, and remuneration, Article
79 of the Conditions of Employment, which appears in Title IV relating to local staff, refers as regards those aspects of
their conditions of employment to the current rules and practice in the place where they are to perform their duties.
In those circumstances, it must be recognised that when, in Title IV of the Conditions of Employment dealing with local staff,
the Community legislature refers, as regards their conditions of employment, to current rules and practice in the place where
they are to perform their duties, this is not intended to cover aspects of the employment relationship between those staff
and their institution other than those regulated in Titles II and III for other categories of staff.
Finally, it should be pointed out that Article 79 of the Conditions of Employment cannot without a risk of jeopardising the
proper functioning of the services of a Community institution be interpreted as capable of leading to the adoption, on a specific
point and for the same category of the institution's staff, of differing or even conflicting measures, drawn up in different
frameworks and in accordance with different rules.
Yet that could be the case precisely in the event of the concurrent exercise by the whole of the staff of a Community institution
within the Staff Committee, on the one hand, and a particular category of staff within a body set up pursuant to the national
legislation of the State in which they perform their duties, on the other, of the rights conferred on them respectively by
the Staff Regulations and by that national legislation as regards representation of the staff and defence of their interests.
It follows that the arrangements for the representation and defence of the interests of the local staff of a Community institution
do not form part of the
conditions of employment within the meaning of Article 79 of the Conditions of Employment, and that those arrangements are governed exhaustively by
Article 9 of the Staff Regulations in conjunction with Annex II thereto and Article 7 of the Conditions of Employment.
Consequently, the reference in Article 79 of the Conditions of Employment to current rules and practice in the place where
local staff are to perform their duties cannot include the national legislation applicable to that place concerning the participation
of workers in the undertaking which employs them, such as the rules in Part II of the ArbVG.
Contrary to the submissions of the works council and the Austrian and Swedish Governments, no argument to the contrary can
be derived from the allegedly fragmentary or rudimentary nature of the provisions of the Staff Regulations and the Conditions
of Employment on participation by the staff of the Community institutions in the representation and defence of their interests.
First, as the Advocate General observes in points 96 and 97 of his Opinion, the system of representation and defence of the
interests of the staff established by the relevant provisions of the Staff Regulations and the Conditions of Employment is
designed to meet the needs of the various institutions and their staff and to enable them to contribute by carrying out their
individual tasks to the realisation of the objectives of the European Union.
It was not argued before the Court that the details of that system, as they follow from Regulation No 259/68, were contrary
to any higher-ranking provision of Community law, or were inadequate for ensuring the defence of the interests of the staff
of the Community institutions in a form appropriate to the needs of the institutions and the accomplishment of their tasks.
Second, the arrangements for the participation by the workers of an undertaking, as organised at the level of the States in
which local staff of the European Communities may be required to perform their duties, are not necessarily the same as those
defined in Part II of the ArbVG, and may even vary within a single State depending on the circumstances, so that in any event
their application to those local staff would not be such as to guarantee those staff, in all cases, a more complete participation
in the defence of their interests than that which derives from the provisions of the Staff Regulations and the Conditions
of Employment.
In the light of all the foregoing, the answer to the questions must be that Article 9 of and Annex II to the Staff Regulations
and Article 79 of the Conditions of Employment must be interpreted as precluding the application to the local staff employed
in the Commission's representation in Vienna of the Austrian legislation on labour relations in establishments in Part II
of the ArbVG.
Costs
The costs incurred by the Austrian, German, Netherlands and Swedish Governments, which have submitted observations to the
Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Oberster Gerichtshof by order of 14 March 2001, hereby rules:
Rodríguez Iglesias
Wathelet
Schintgen
Timmermans
Gulmann
Edward
La Pergola
Jann
Skouris
Macken
Colneric
von Bahr
Cunha Rodrigues
Delivered in open court in Luxembourg on 10 July 2003.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Language of the case: German.