Judgment — ECLI:EU:T:1996:193
Date: 1996-12-12
Language of the case: English
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Conditions of engagement;Equal treatment and non-discrimination;Scope of judicial review;Effect of the outcome of the action for annulment;General;Principle of equality and non-discrimination;Res judicata;Plea of illegality
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded;Staff cases - successful;Action for damages - inadmissible

summary by Mr O'Hara, see Annex 8 to 
the application in Case T-177/94, p. A8.16) and finally from a letter from the chair­
man of the UKAEA of 15 March 1994 (Annex 18 to the application in Case 
T-177/94) that the UKAEA no longer objects to its employees made available to 
JET joining the temporary staff of the Community, provided that they resign from 
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its employment at the same time. The Director of JET has considered Recommen­
dation N o 1 of the Pandolfi Panel to be the only one which would 'guarantee the 
restoration of social peace'. The trade unions representing UKAEA staff have also 
expressed unreserved support for Recommendation N o 1, in their report of 9 Feb­
ruary 1993 (see paragraph 19 above). 
102 In view of those changes, it is no longer possible to find on the evidence now 
before the Court, as the Court of Justice did at paragraph 37 of its judgment in 
Ainsworth, that the difference in treatment established by Article 8.4 and 8.5 of the 
Statutes is still objectively justified by the concern to avoid upsetting the function­
ing of the UKAEA, whose sole concern now is not to give guarantees of future 
employment to the staff which it makes available to JET. 
4. The industrial relations conflict within JET 
103 Fourthly, the Joint Undertaking is faced with a permanent industrial relations con­
flict which has not only soured working relations at JET but has also jeopardized 
the prompt achievement of the objectives of the Community Fusion Programme, 
since the Parliament, having intervened in the conflict and being concerned to 
bring an end to what it saw as unacceptable discrimination against the applicants, 
for several months withheld nearly half of the yearly budget appropriations allo­
cated to JET. 
104 It must also be borne in mind that, according to the Director of JET, Recommen­
dation N o 1 of the Pandolfi Panel is the only one which would 'guarantee the 
restoration of social peace' and that the Commission itself considered that it 
'would have constituted the most suitable solution in order to conclude the project 
in good order' (see the Report of the Commission to the Parliament in Annex 17 
to the application in Case T-l 77/94). 
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5. The change in the recruitment system originally envisaged 
ios Fifthly, the difference in treatment established by Article 8.4 and 8.5 of the Statutes 
is linked to the specific system of staff recruitment and secondment decided upon 
when the Joint Undertaking was set up. The essential characteristics of that system 
are that qualified staff are made available by the members of JET (Article 8.1 and 
8.3 of the Statutes), being recruited as temporary staff by the Commission (Article 
8.5) with an undertaking of re-employment from the member concerned (Article 
8.8). However, given the disruption which that system was likely to cause within it 
in view of its special position as host organization, the UKAEA obtained a deroga­
tion whereby the staff which it made available would remain in its employment on 
its terms and conditions (Article 8.4). 
loe At the time when JET was set up, that system was considered essential, given the 
temporary nature of the Joint Undertaking, in order to prevent social problems at 
the end of the Project without obliging the Commission to give staff made avail­
able to JET the status of established officials, whilst still providing for sufficiently 
centralized personnel management (see the Report for the Hearing, and the Opin­
ion of Advocate General VerLoren van Themaat, in the Ainsworth case, at ECR 
p. 178 and ECR p. 190 respectively; see also, on the question as a whole, the report 
of the Pandolfi Panel). 
107 It must, however, be acknowledged that that system, modified in at least six impor­
tant respects, is no longer able to fulfil the purposes for which it was originally 
designed. 
— Lack of security of employment for UKAEA staff 
ios First, it is clear from the documents before the Court that UKAEA staff have no 
assurance of finding a suitable post on completion of their assignment with JET. 
The statistics produced by the Commission at the request of the Court show that 
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very few of them return to a post with the UKAEA after their secondment (12 out 
of 68 for the years 1992 to 1995: see paragraph 89 above). The applicants have 
described the cases of several staff members whose contracts have not been 
renewed on the expiry of their secondment or who have been obliged to accept 
early retirement (see the UKAEA's letters of December 1992 in Annex 8 to the 
application in Case T-177/94, compared with those dating from the 1980s). They 
have also cited, without being contradicted by the Commission, the statements 
made by Mr Bretherton, Secretary of the UKAEA, at a meeting of JET staff on 17 
September 1993, that the majority of the United Kingdom members of the JET 
Team staff would be made 'redundant' at the end of JET, and by Mr Dawson, 
Director of Personnel for the UKAEA, at a meeting of the Joint Working Party on 
the Future Career Prospects of JET Team Members on 30 September 1993, that 
'the deployment of over two hundred staff at the end of 1996 would present the 
[UK]AEA with great difficulty and ... the probability had to be faced that a sig­
nificant proportion would be surplus' (see Annex 8 to the application in Case 
T-177/94). Finally, the UKAEA has significantly reduced the job security of its 
employees, introducing fixed-term contracts of three years or less as the norm (see 
the documents produced in Appendix 11 to the petition to the European Parlia­
ment and in Annex 7 to the application in Case T-177/94). 
— Near impossibility for United Kingdom staff to obtain a 'return ticket' from a 
member of JET 
109 Secondly, it is clear from the documents before the Court that, other than in 
exceptional cases (see Case T-99/95 Stött v Commission), it is not possible in prac­
tice for United Kingdom nationals to obtain a 'return ticket' from a member of 
JET other than the UKAEA (see, in Annex 14 to the application in Case T-177/94, 
the contents of which have not been contested by the Commission, the cases of 
Drs Altmann, Hubbard, Gondhalekar and Fishpool and Mr Shaw between 1987 
and 1993, involving the German, Netherlands and Italian members of JET). As a 
result, the possibility that United Kingdom nationals could be made available to 
JET by any one of its members, to which the Court of Justice referred in para­
graphs 25 and 26 of its judgment in Ainsworth, has remained purely theoretical. In 
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JUDGMENT OF 12. 12. 1996 — JOINED CASES T-177/94 AND T-377/94 
contrast to the situation found at paragraph 27 of the Ainsworth judgment, more­
over, the five examples mentioned above, like the circumstances of Case T-99/95 
Stött v Commission, show that, in order to comply with the requirements of the 
Statutes and the Supplementary Rules as interpreted by the Commission, the 
applicants have had to abandon the possibility of being made available to JET by a 
member organization other than the UKAEA and, consequently, that of being 
recruited to the temporary staff of the Communities under Article 8.5 of the Stat­
utes. 
— Limited practical value of 'return tickets' 
no Thirdly, the documents before the Court show that very few of the staff made 
available to JET by members other than the UKAEA make use of their 'return 
tickets'. The figures produced by the Commission at the request of the Court 
show that only six of them have done so, out of a total of 70 staff members who 
left JET between 1992 and 1995 (see paragraph 89 above). 
m The practical value of those 'return tickets' is further called into question by vari­
ous statements of the JET management and the Commission (see, in particular, 
paragraph 21 of the Annual Report on Personnel Matters 1986/1987 presented by 
the Director of JET to the JET Executive Committee Meeting N o 62 held on 14 
and 15 May 1987, and the letter sent on 16 July 1991 to the heads of all fusion 
research units by Mr Kind, an official in D G XII — Annex 9 to the application in 
Case T-177/94). Following two surveys concerning the validity of the 'return tick­
ets' carried out in 1992 by D G XII among the members and Euratom staff of JET, 
the ad hoc JET monitoring group in D G XII concluded at its meeting on 2 June 
1992 that 'a great majority of the return tickets in their current form do not pro­
vide any real guarantees' (see the minutes of that meeting in Annex 9 to the appli­
cation in Case T-177/94). 
iu It is clear from the figures provided by the Commission in response to questions 
from the Court that a considerable number of 'return tickets' are for a limited 
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period and thus do not offer any substantial advantages in terms of security of 
employment. The terms of the 'return tickets' held by Community temporary staff 
made available to JET by members other than the UKAEA on 1 January 1993 and 
1 January 1996 were as follows: 
Duration of re-employment 
Number 
1.1.93 1.1.96 
3 months 8 5 
6 months 39 31 
12 months 14 11 
18 months 1 1 
Unlimited 101 69 
TOTAL 163 117 
113 Furthermore, the fall in the number of 'return tickets' of unlimited duration from 
101 on 1 January 1993 to 69 on 1 January 1996, a difference of 32, does not mean 
that those 'return tickets' were used; in fact, 42 of the 52 temporary Community 
staff who left JET during that period secured permanent posts with the Commis­
sion, and only three- of them made use of their 'return tickets'. By contrast, of the 
45 UKAEA employees who left JET during the same period, only five obtained 
permanent posts with the Commission, after taking external competitions (see 
paragraph 89 above). 
— Recruitment of temporary staff made available to JET by the EAEC to perma­
nent posts with the Commission and undertakings given in that regard 
IH Fourthly, in order to make up for those deficiencies, the Commission has taken 
into Community employment, well before the end of the Joint Undertaking, a sig­
nificant proportion of the staff made available to the Project Team by its members 
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(see paragraph 89 above) and has also given various general undertakings with a 
view to facilitating redeployment of temporary Community staff with JET to 
other services on the conclusion of the Project (see paragraph 90 above). That 
policy runs directly counter to the reasons advanced in 1978 to justify the system 
whereby staff are made available by members. 
— Establishment of artificial links with member organizations 
ns Fifthly, the present recruitment system leads in many cases (30 of the 70 applicants 
are in this position) to artificial links being established between a researcher and a 
member organization of JET with whom he or she had no contact before being 
selected for the project. The link with the member concerned becomes purely for­
mal — without there being any need to rule as to whether such a practice complies 
with Article 8.1, 8.4, 8.5 and 8.8 of the Statutes — when the 'return tickets' are 
issued by outside firms or organizations and merely 'underwritten' by the member 
of JET concerned. According to the Commission's answer to a written question 
from the Court, 39 of its 117 temporary staff made available to the Project in Feb­
ruary 1996 were in such a position. 
iu It follows from all of the foregoing that the policy of giving precedence to the 
system whereby staff are made available by the members of the Joint Undertaking, 
with every candidate having to find a member organization willing to make him or 
her available to JET, no longer meets the concern identified by the Court of Justice 
at paragraph 23 of the Ainsworth judgment of ensuring that all members of the 
JET staff are guaranteed employment at the end of the Project. 
117 In view of all those factors, it can only be concluded that all the factual circum­
stances referred to by the Court of Justice in support of its conclusion that there 
was objective justification for the difference in treatment established by the JET 
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Statutes have lapsed. The Court of Justice did not, moreover, have to rule on the 
difference in treatment related to career prospects and security of employment, 
which were not in issue in Ainsworth. 
D :— Legal consequences of the factual developments since the Ainsworth judgment 
us This Court has found that, in the light of factual developments, the difference in 
treatment established by Article 8.4 and 8.5 of the Statutes is no longer objectively 
justified by the factors relied upon by the Court of Justice in Ainsworth (see para­
graphs 81 to 117 above). The question therefore arises whether, in the context of 
an objection of illegality under Article 156 of the EAEC Treaty (Article 184 of the 
EC Treaty), this Court may have regard to changes in factual and legal circum­
stances in order to declare inapplicable a provision which the Court of Justice has 
already held to have been lawful at the time it was adopted. This aspect of the case 
has been stressed above all by the Council, whose arguments are based on the 
principles of legality and legal certainty. 
119 The system of legislative and judicial powers set up by the Treaty does not in itself 
preclude such factors from being taken into consideration. By giving any party the 
right, unlimited in time, to seek a declaration, in proceedings in which a regulation 
of the Council or of the Commission is in issue, that the regulation is unlawful ah 
initio, Article 156 of the EAEC Treaty (Article 184 of the EC Treaty) implies a 
fortiori that such a party is entitled to raise an objection pleading that the regu­
lation is unlawful as from a subsequent point in time. In the present case, since the 
Statutes were adopted by a Council decision and not by a regulation as such, it 
must be added that, according to consistent case-law, Article 156 of the EAEC 
Treaty (Article 184 of the EC Treaty) gives expression to a general principle con­
ferring upon any party to proceedings the right to challenge, for the purpose of 
obtaining the annulment of a decision of direct and individual concern to that 
party, the validity of previous acts of the institutions which form the legal basis of 
the decision which is being contested, if that party was not entitled under Article 
146 of the EAEC Treaty (Article 173 of the EC Treaty) to bring a direct action 
challenging those acts by which it was thus affected without having been in a pos­
ition to seek their annulment (Case 92/78 Simmenthal v Commission [1979] ECR 
777 and Case 262/80 Andersen and Others v Parliament [1984] ECR 195). Since 
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the legality of the individual measure contested must be assessed on the basis of 
the elements of fact and of law existing at the time when the measure was adopted 
(joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321), the legality 
of the legislative measure which forms its legal basis must also be assessed at that 
time rather than at the time of its own adoption. 
no It is, furthermore, clear from the Ainsworth judgment that the Court of Justice 
found an objective justification for the difference in treatment at issue in certain 
legal and factual elements existing at the time. This Court cannot assume that the 
reasoning of the Court of Justice would have remained the same if those elements 
had been different. 
121 It must also be borne in mind that the general principle of equal treatment, which 
is one of the fundamental principles of Community law, requires that similar situ­
ations should not be treated differently unless such differentiation is objectively 
justified {Ainsworth, paragraph 33; see, most recently, Case T-571/93 Lefebvre and 
Others v Commission [1995] ECR 11-2379, paragraph 78). Since any difference in 
treatment is thus in the nature of an exception, derogating from a fundamental 
principle of Community law, it is self-evident that it can no longer be regarded as 
remaining valid, even if the rule establishing it does not explicitly limit its duration, 
once the circumstances constituting the objective justification for its existence have 
ceased to obtain (see, for an application of those principles, Case 36/83 Mabanaft 
v Hauptïoüamt Emmerich [1984] ECR 2497, especially at paragraph 34). 
122 That is all the more true where, as in the present case, the limited duration of a 
specific situation is one of the factors taken into consideration as part of the objec­
tive justification for unequal treatment. It is necessary in such a case to ensure with 
particular care that the situation in question does not extend unduly beyond the 
duration reasonably envisaged at the outset. Should this occur, it is for the author 
of the rule to reassess its initial appraisal. 
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123 That does not conflict in any way with the principle of legality in the Community 
which, although it entails for individuals the right to challenge the validity of regu­
lations by legal action, also requires all persons subject to Community law to 
acknowledge that regulations are fully effective so long as they have not been 
declared to be invalid by a competent court (Granaria v Hoofdproduktschap voor 
Akkerbouwprodukten, cited above). Thus, in the present case, the principle of 
legality in the Community undoubtedly required the Commission to continue 
applying the JET Statutes even after they had, in the applicants' view, become ille­
gal as a result of the objective justification having lapsed for the difference in treat­
ment which they establish. The applicants, however, cannot be denied the right to 
bring a challenge before the Community judicature seeking a declaration that those 
Statutes are inapplicable, not ab initio but as from the date of a specific change in 
circumstances. 
124 Even on the assumption that, as the Council submits, the principles of legality and 
legal certainty preclude this Court from having regard to a change in the factual 
and legal circumstances which, when the JET Joint Undertaking was set up, con­
stituted an objective justification for the difference in treatment established by 
Article 8.4 and 8.5 of the Statutes, in order to declare those provisions inapplicable 
henceforth, they could do so in any event only in respect of the original 12-year 
period provided for in Article 1 of Decision 78/471/Euratom and Article 19 of the 
Statutes annexed thereto. 
ns Had it not been extended, the JET Joint Undertaking would have come to an end 
on 30 May 1990, in accordance with Article 1 of Decision 78/471 and Article 19 of 
the Statutes. Decision 88/447, by which the Council extended by 31 months the 
duration of the Joint Undertaking and the concomitant application of the rules of 
organization and operation contained in its Statutes, therefore produced its own 
distinct legal effects (see Case C-135/93 Spain v Commission [1995] ECR 1-1681, 
paragraphs 25 to 30). The same is true of Decisions 91/677 and 96/305, providing 
for subsequent extensions to the duration of JET. 
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JUDGMENT OF 12. 12. 1996 - JOINED CASES T-177/94 AND T-377/94 
126 One of the distinct legal effects of those decisions has been that of maintaining the 
system of staff recruitment and secondment in force at JET. Far from being a nec­
essary consequence of the decision to extend the duration of JET, the system was 
maintained as a result of the Council's exercising afresh its power of assessment in 
fact and law, as it explicitly acknowledged at point 19 of its statement in interven­
tion, stating that 'should a proposal on a further prolongation of the JET project 
be submitted, [it] will have the opportunity to decide whether or not such prolon­
gation would justify a review of the recruitment system under Article 8 of the Stat­
utes'. 
127 The Court of Justice has consistently held that an action for annulment must be 
available under the conditions laid down in Article 146 of the EAEC Treaty 
(Article 173 of the EC Treaty) in the case of all measures adopted by the institu­
tions, whatever their nature or form, which are intended to have legal effects (Case 
22/70 Commission v Council [1971] ECR 263, paragraph 42, and Spain v Commis­
sion, cited above, paragraph 20). The validity of provisions of an institutional or 
general nature such as those in issue here — which may not be challenged in a 
direct action by natural or legal persons other than Community institutions and 
Member States and by which those persons are thus affected without having been 
in a position to seek their annulment — may be challenged by such persons under 
Article 156 of the EAEC Treaty (Article 184 of the EC Treaty) in order to secure 
the annulment of a decision which is of direct and individual concern to them and 
for which those provisions form the legal basis (judgments in Simmenthal and 
Andersen, both cited above). 
128 In support of their applications for the annulment of the contested decisions, 
therefore, the applicants are in any event entitled to challenge the validity of the 
successive decisions by which the Council extended the duration of JET and, more 
particularly, one of the legal effects of those decisions, namely that of maintaining 
the system of staff selection, posting and management in place at JET, including the 
difference in treatment established by Article 8.4 and 8.5 of the Statutes. Such a 
challenge cannot be regarded as jeopardizing legal certainty where it relates only to 
the specific legal effects of the extending decision without in any way reopening, in 
the light of a fresh legal assessment, the question of the legality and effects of the 
previous situation. 
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129 In the present case, even if the difference in treatment established by Article 8.4 
and 8.5 of the Statutes could still be justified when the duration of JET was 
extended for a further 31 months by Decision 88/447, that had already ceased to 
be the case when, on 19 December 1991 (before the commencement of the pre-
litigation procedures and the bringing of the present actions), the Council again 
extended the duration of JET for four years, until 31 December 1996, by Decision 
91/677. 
130 In that regard, the Court notes that: the Agreement on Support from the Host 
Organization was amended in 1988; the UKAEA, in the person of its chairman, 
stated on 17 October 1989 that it did not object to its staff assigned to JET being 
recruited by the Commission; the Commission has given guarantees of future 
employment to temporary Community staff with JET since late 1988; it was 
already obvious in 1990 that the 'return ticket' system was not working, as is 
shown by the appendices to the petition submitted to the Parliament in February 
1990; and on 10 December 1991 the Parliament sent the Council a Legislative 
Resolution calling into question the recruitment system in place at JET (see para­
graph 15 above). The conclusions of the Pandolfi Panel's report, published on 16 
September 1992, clearly show that neither the provisions of Article 8.4 and 8.5 of 
the Statutes nor the 'return ticket' system any longer appeared reasonable to the 
four independent experts on the panel, who considered that they should be 
amended by appropriate legislative means. That point of view has been approved 
in substance by the staff and management of JET, the staff and management of the 
UKAEA, the Commission and the Parliament. Only the JET Council has refused 
to accept the implications of the report, but without giving any reasons whatever 
for its stance. In view of the factors which the Pandolfi Panel was able to take into 
account, this Court considers that its findings and conclusions were already ines­
capable by 19 December 1991, when the Council extended the recruitment system 
laid down in Article 8 of the Statutes. 
1 3 1 It follows that the provisions of Article 8.4 and 8.5 of the Statutes, as maintained in 
force by Decision 91/677, and subsequently by Decision 96/305, have given rise, at 
least since 19 December 1991, to a difference in treatment, which has no objective 
justification and is therefore unlawful, as between two categories of JET staff, 
depending on the member organization making the staff concerned available to the 
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JUDGMENT OF 12. 12. 1996 — JOINED CASES T-177/94 AND T-377/94 
Joint Undertaking, in particular as regards prospects of recruitment to the service 
of the Communities. 
132 The applicants submit, however, that the Statutes as they now stand allow the 
Commission to recruit them to temporary posts as 'other personnel' under Article 
8.5 which, they claim, would suffice to remedy the unequal treatment found above. 
Such recruitment was, moreover, the purpose of their initial approach to the 
appointing authority (see point 3 of, and Annex 2 to, their complaint under Article 
73 of the Conditions of Employment and Article 90 of the Staff Regulations) and 
also forms the main object of their claims for annulment of the decisions rejecting 
their requests. The Council, too, which drew up the Statutes of JET, has asserted in 
its statement in intervention, and repeated at the hearing in answer to a question 
from the Court, that it does not consider there to be any legal obstacle in the Stat­
utes to recruitment on the terms referred to by the applicants. 
133 It is therefore necessary to determine whether the Statutes do in fact allow persons 
who, like the applicants, have already been made available to the Project by the 
UKAEA to be recruited as 'other personnel' under Article 8.5. If that were so, the 
Statutes would contain a mechanism enabling the difference in treatment which 
they establish to be remedied, at least in part. The Court considers that this cir­
cumstance, if established, might be sufficient to avoid a finding of illegality, for the 
reasons given above. 
E — Legality of the contested decisions 
134 At point 10 of each of the contested decisions, the Commission considered that the 
engagement of the applicants as temporary staff would infringe Article 8.4 of the 
Statutes, which provides that staff made available by the host organization is to 
remain in the employment of that organization. At point 11 of each decision, it 
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ALTMANN AND OTHERS v COMMISSION 
added that, under Article 8.4 and 8.5 of the Statutes, if the applicants wished to be 
engaged as temporary staff they must terminate their employment with the 
UKAEA and be taken on and assigned to JET by another member organization. 
Otherwise, it referred (at point 12) to the JET Council's refusal to have Recom­
mendation N o 1 in the Pandolfi Panel's report implemented and (in points 13 and 
14) to the UKAEA's repeated undertakings with regard to its staff made available 
to JET. In its written pleadings, the Commission added that to recruit the appli­
cants as 'other personnel' would give rise to a new kind of discrimination, against 
the staff made available to JET by members other than the UKAEA, and that such 
an extension would destroy the recruitment system set up by the Statutes. 
135 The applicants argue, essentially, that there is nothing in the Statutes formally pre­
venting their recruitment as 'other personnel' — on the contrary, they are entitled 
to be recruited as such, since that is the only way in which the discrimination they 
suffer could be brought to an end. 
136 The Court considers that, whilst nothing in the Statutes expressly and unequivo­
cally precludes persons who, like the applicants, have already been made available 
to the Project by the UKAEA from being recruited as 'other personnel' under 
Article 8.5 in principle, the fact remains that their general scheme and actual word­
ing lead to the conclusion that such recruitment cannot be envisaged without seri­
ously undermining the system of staff recruitment and management which they set 
up. 
137 The concept of 'other personnel' in Article 8.5 of the Statutes must be interpreted 
by reference to Article 8.1, which provides that the Project Team is to be com­
posed of staff coming from the members of JET as provided for in Article 8.3, and 
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JUDGMENT OF 12. 12. 1996 - JOINED CASES T-177/94 AND T-377/94 
of 'other personnel'. N o provision is made in the Statutes for a member of the 
Project Team made available by the UKAEA to resign from such employment for 
the sole purpose of being recruited by the Commission as 'other personnel'. 
ne Furthermore, as the Commission has rightly argued, the applicants' proposed 
interpretation of the Statutes runs counter in any event to the very principle under­
lying the system of staff recruitment and management currently in place at JET, 
namely the establishment and maintenance of two separate categories of staff, 
depending on the member making them available. 
139 Article 8.4 and 8.5 of the Statutes, as they now stand, therefore cannot be inter­
preted as allowing the applicants to be recruited as 'other personnel' within the 
meaning of those provisions. 
140 It must, moreover, be stated that the JET Council and management have adopted 
ancillary or ad hoc rules to prevent any possibility of such recruitment (see this 
Court 's analysis of Section 9.1 of the Supplementary Rules and the 'resign first' 
rule in its judgment given today in Case T-99/95 Stött v Commission, a parallel, 
case). The difference in treatment established by Article 8.4 and 8.5 of the Statutes 
is thus reinforced by the operation of mechanisms which complement one another 
and are designed to ensure that it cannot in any way be remedied. 
1 4 1 It must therefore be held that Article 8.4 and 8.5 of the Statutes, the supplementary 
provisions implementing them and the administrative rules intended to give effect 
to them are illegal in so far as they establish or help to maintain a difference in 
treatment that is without objective justification and is thus unlawful, as between 
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ALTMANN AND OTHERS v COMMISSION 
two categories of JET staff, depending on the member organization making the 
staff concerned available to the Joint Undertaking, in particular as regards pros­
pects of recruitment to the service of the Communities. 
142 The applicants' alternative plea of illegality raised under Article 156 of the EAEC 
Treaty must therefore be upheld and Article 8.4 and 8.5 of the Statutes must be 
declared inapplicable in the present case to the extent indicated at paragraphs 131 
and 141 above. The same applies to the Supplementary Rules and the 'resign first' 
rule in that they are tainted by the same illegality. 
143 Since those provisions cannot serve as a legal basis for the contested decisions, it 
remains to be determined whether any of the other reasons listed in paragraph 134 
above could constitute a valid ground for the rejection of the applicants' requests. 
144 First, the JET Council's opposition to the implementation of Recommendation 
N o 1 in the Pandolfi Panel's report is clearly not a ground on which the Commis­
sion could legitimately rely against the applicants' requests, since the JET Council 
is not in a position to exempt anyone from the application of Community law. It 
was on the contrary for the Commission to ensure strict compliance with the fun­
damental principles of Community law by the JET Council, since the Joint Under­
taking receives more than 80% of its funding from Community sources and the 
European Atomic Energy Community is one of its members. In Ainsworth, more­
over, the Court of Justice held the Commission legally responsible for the conduct 
of the JET management (see paragraphs 19 to 27 of the judgment). 
145 The argument that to recruit the applicants as 'other personnel' would give rise to 
a new kind of discrimination, against the staff made available by members of JET 
other than the UKAEA, unless such recruitment were also extended to them, is 
irrelevant inasmuch as it refers, ex hypothesi, to a type of recruitment which this 
Court has already held was not available to the applicants. In any event, it is for 
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the institutions concerned to prevent the appearance of any new form of unequal 
treatment which is not objectively justified when taking the necessary measures to 
comply with this judgment in accordance with Article 149 of the EAEC Treaty. 
146 Consequently, the contested decisions cannot be justified in law on any of the 
grounds on which they are based and must therefore be annulled. 
The claims for compensation 
147 The claims for compensation (seventh and eighth heads of claim) were already 
included in the applicants' complaints under Article 90(2) of the Staff Regulations 
against acts adversely affecting them, namely the implied decisions rejecting their 
requests to be engaged as temporary staff of the Community. These claims must 
therefore be regarded as having been made pursuant to Article 152 of the EAEC 
Treaty (Article 179 of the EC Treaty) and Articles 90 and 91 of the Staff Regula­
tions, which have been complied with. In principle, therefore, the claims are 
admissible. 
148 It must, however, be pointed out that the admissibility of a claim for compensation 
is limited to making good damage directly related to the relevant act adversely 
affecting an applicant, namely, in this case, the implied decisions rejecting the 
applicants' original requests to be engaged as temporary Community staff, which 
were submitted in January 1993 by the applicants in Case T-177/94 and in Septem­
ber and October 1993 by the applicants in Case T-377/94. To the extent, however, 
that compensation is sought by the applicants in respect of damage arising out of 
conduct on the part of the Commission unrelated to the acts adversely affecting 
them, namely the rejection of those original requests, these claims must be dis­
missed as inadmissible because the applicants failed to comply with the two-stage 
II-2100 
ALTMANN AND OTHERS v COMMISSION 
pre-litigation procedure laid down in Articles 90 and 91 of the Staff Regulations 
(see, most recently, Case T-54/92 Schneider v Commission [1994] ECR-SC 11-887 
and the order in Case T-569/93 Moat v Commission [1995] ECR-SC 11-305, para­
graph 25). 
149 As to whether the applicants may also base their claims for compensation on the 
second paragraph of Article 188 of the EAEC Treaty and the second paragraph of 
Article 215 of the EC Treaty, it must be borne in mind that a dispute between an 
official and the institution which employs or employed him or her concerning 
compensation for damage is pursued, where it originates in the employment rela­
tionship between the person concerned and the institution, under Article 152 of 
the EAEC Treaty (Article 179 of the EC Treaty) and Articles 90 and 91 of the Staff 
Regulations and, as regards, in particular, the question of admissibility, lies outside 
the sphere of application of Articles 151 and 188 of the EAEC Treaty (Articles 178 
and 215 of the EC Treaty) (Case 9/75 Meyer-Burckhardt v Commission [1975] 
ECR 1171 and Case 48/76 Reinarz v Commission and Council [1977] ECR 291, at 
p. 297). Since the jurisdiction of the Community judicature with regard to persons 
claiming the status of officials or of servants other than local staff derives from 
Article 152 of the EAEC Treaty (Article 179 of the EC Treaty) (see Case 65/74 
Porrini and Others v EAEC [1975] ECR 319, and the Ainsworth judgment), it is 
also subject, as stipulated in that article, to the limits and conditions laid down in 
the Staff Regulations or the Conditions of Employment (see the Opinion of Advo­
cate General Mischo in the Ainsworth case, at ECR pp. 196-201). Furthermore, by 
submitting requests and complaints the applicants have themselves followed the 
procedure outlined in Articles 90 and 91 of the Staff Regulations and the admis­
sibility of their actions must therefore be considered in the light of those provi­
sions {Meyer-Burckhardt, cited above, paragraph 8). 
iso The argument that Decision 78/471 establishing JET and adopting its Statutes was 
taken by the Council and not the Commission cannot prevail against the appli­
cants' right to bring their actions directly against the institution responsible for the 
act adversely affecting them. It is clear from Article 184 of the EAEC Treaty that 
only the Community has legal personality (see also Article 152 and the second 
I I -2101 
JUDGMENT OF 12. 12. 1996 — JOINED CASES T-177/94 AND T-377/94 
paragraph of Article 188, which refer only to the Community and not to its 
institutions). Whilst it is true that under the Community legal system it is in the 
interests of the proper administration of justice that, where the liability of the 
Community is incurred by the act of one of its institutions, it is represented before 
the Court by the institution or institutions accused of the act giving rise to liability 
(Joined Cases 63/72 to 69/72 Werhahn v Council [1973] ECR 1229, paragraph 7, 
and Case 353/88 Briantex and Di Domenico v European Economic Community 
and Commission [1989] ECR 3623, paragraph 7), that does not render a claim for 
compensation inadmissible, if it is closely linked to a claim for annulment which is 
itself admissible. 
isi As regards the substance of the claim, it must first be determined whether the 
liability of the Community is incurred on account of the acts unlawfully adopted 
by the Council and implemented by the Commission. 
152 As the Commission has rightly pointed out, the JET Statutes form part of a legisla­
tive measure, namely Decision 78/471, as amended by Decisions 88/447, 91/677 
and 96/305. The claims for compensation are based on the allegation that those 
Statutes are unlawful, and the Court of Justice has consistently held that such ille­
gality is not in itself sufficient for the Community to incur liability. In such cases, 
liability arises only where there is a sufficiently serious breach of a superior rule of 
law for the protection of the individual (Joined Cases 83/76, 94/76, 4/77, 15/77 and 
40/77 Bayerische HN L and Others v Council and Commission [1978] ECR 1209, 
paragraphs 4 to 6, Case 238/78 Ireks-Arkady v Council and Commission [1979] 
ECR 2955, paragraph 9, and Case 143/77 Koninklijke Scholten-Honig v Council 
and Commission [1979] ECR 3583, paragraph 10). The principles enshrined in 
those rulings should be applied by analogy in the present case, a Community staff 
dispute, having regard in particular to the broad discretion enjoyed by the institu-
II - 2102 
ALTMANN AND OTHERS v COMMISSION 
tions to adopt general provisions laying down rules for the establishment and 
operation of Joint Undertakings set up in accordance with Chapter 5 of Title II of 
the EAEC Treaty. In the present case, therefore, there can be no liability on the 
part of the Community unless the institution concerned has manifestly and gravely 
disregarded the limits on the exercise of its powers. 
153 The fundamental principle of equal treatment is undoubtedly a superior rule of law 
for the protection of the individual (see Ireks-Arkady, cited above, paragraph 11, 
Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier 
Frères and Others v Council [1979] ECR 3091 and Joined Cases C-104/89 and 
C-37/90 Mulder and Others v Council and Commission [1992] ECR 1-3061). 
154 In the present case, however, the breach of that principle by the Statutes is not suf­
ficiently serious to render the Community liable. The difference in treatment of 
which the applicants complain was objectively justified in the original context of 
the establishment of the Joint Undertaking and its validity was confirmed by the 
Court of Justice in Ainsworth in 1987. It is true that by December 1991, as stated 
in paragraph 130 above, the Council was in a position to observe the changes in 
circumstances which it should have taken into account when it adopted Decision 
91/677, since they removed the basis for the reasoning of the Court of Justice in 
Ainsworth. However, in view of the authority attaching to judgments of the Court 
of Justice in the Community legal system and of the broad discretion conferred on 
the institutions with regard to the organization and operation of Joint Undertak­
ings, this Court considers that the Council did not manifestly and gravely disre­
gard the limits on the exercise of its legislative powers by illegally maintaining in 
force the recruitment system provided for in Article 8 of the Statutes. In the excep­
tional circumstances of the present case, in which the institutions relied in part on 
the authority of the Ainsworth judgment, in a complex factual context, constantly 
in a state of flux, this Court considers at the very least that their conduct was not 
such as to cause the Community to incur liability before the date on which this 
judgment, finding that any objective justification for the difference in treatment 
noted by the Court of Justice in Ainsworth has lapsed, is delivered. 
I I -2103 
JUDGMENT OF 12. 12. 1996 — JOINED CASES T-177/94 AND T-377/94 
155 Nor, for the same reasons, is the conduct alleged against the Commission such as 
to cause the Community to incur liability inasmuch as it stems from the imple­
mentation of the Statutes for administrative purposes. The Commission was, 
moreover, right to consider that the Statutes, as they now stand, do not in them­
selves allow the applicants to be recruited as 'other personnel' under Article 8.5. 
ise The claims for compensation must therefore be dismissed as unfounded. 
Costs 
157 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be 
ordered to pay the costs if they have been applied for in the successful party's 
pleadings. Under Article 87(3) of those rules, where each party succeeds on some 
and fails on other heads, or where the circumstances are exceptional, the Court 
may order that the costs be shared or that each party bear its own costs. Article 88 
provides that institutions are to bear their own costs in proceedings brought by 
servants of the Communities. 
iss Since the Commission has been unsuccessful on the essential heads of claim, and in 
view of the exceptional circumstances as a result of which the claims for compen­
sation have been dismissed, the Court considers that the proper application of 
those principles requires that the Commission should be ordered to bear its own 
costs and to pay those of the applicants. However, pursuant to Article 87(5) of the 
Rules of Procedure and since the parties have not sought any specific order on that 
point, Mr D. Hurford, the twenty-sixth applicant in Case T-177/94, must be 
ordered to bear his own costs. 
II - 2104 
ALTMANN AND OTHERS v COMMISSION 
159 In accordance with Article 87(4) of the Rules of Procedure, the intervener must 
bear its own costs. 
On those grounds, 
THE COURT O F FIRST INSTANCE (Second Chamber) 
hereby: 
1. Takes formal note of the withdrawal from the proceedings of Mr D . 
Hurford, twenty-sixth applicant in Case T-l 77/94, and removes Case 
T-177/94 from the register in so far as he is concerned; 
2. Annuls the Commission's decisions, dated 14 January and 16 September 
1994 respectively, not to recruit the other applicants to posts on the tempo­
rary staff of the Community; 
3. Dismisses the remainder of the applications; 
4. Orders the defendant to bear its own costs and to pay those of the appli­
cants, with the exception of those of Mr D. Hurford, and Mr D. Hurford 
and the intervener each to bear their own costs. 
Kirschner Bellamy Kalogeropoulos 
Delivered in open court in Luxembourg on 12 December 1996. 
H.Jung 
Registrar 
H. Kirschner 
President 
II-2105 
JUDGMENT OF 12. 12. 1996 — JOINED CASES T-177/94 AND T-377/94 
Summary 
Facts II -2048 
Legislative background II - 2048 
The Ainsworth judgment II - 2052 
Subsequent developments II - 2053 
The pre-litigation procedure II - 2061 
Procedure and forms of order sought II - 2063 
Admissibility II - 2067 
A — Scope and admissibility of certain of the applicants' claims II - 2067 
B — The plea of res judicata II - 2069 
Arguments of the parties II - 2069 
Findings of the Court II - 2069 
The claims for annulment II - 2071 
Pleas in law and main arguments II - 2071 
Findings of the Court II - 2076 
A — Preliminary considerations II - 2076 
B — Existence of the alleged difference in treatment II - 2077 
C — Changes in the factual circumstances since the Ainsworth judgment II - 2081 
1. The extension of the duration of JET and the continuation of the 
Fusion Programme II - 2083 
2. The modified role played by the UKAEA in the organization and func­
tioning of the Joint Undertaking II - 2084 
3. The change in the UKAEA's attitude II - 2084 
I I - 2 1 0 6 
ALTMANN AND OTHERS v COMMISSION 
4. The industrial relations conflict within JET II - 2085 
5. The change in the recruitment system originally envisaged II - 2086 
— Lack of security of employment for UKAEA staff II - 2086 
— Near impossibility for United Kingdom staff to obtain a 'return 
ticket' from a member of JET II - 2087 
— Limited practical value of 'return tickets' II - 2088 
— Recruitment of temporary staff made available to JET by the EAEC 
to permanent posts with the Commission and undertakings given in 
that regard 11-2089 
— Establishment of artificial links with member organizations II - 2090 
D — Legal consequences of the factual developments since the Ainsworth judgment . . . II - 2091 
E — Legality of the contested decisions II - 2096 
The claims for compensation II - 2100 
Costs II - 2104 
I I - 2 1 0 7