62001CC0165_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
By the two questions which it has referred for a preliminary ruling the Oberster Gerichtshof (Supreme Court) (Austria) seeks essentially to ascertain the extent to which provisions of national labour law, in this case the provisions of the Arbeitsverfassungsgesetz (Labour Constitution Act, hereinafter
"the ArbVG"
) on labour relations in undertakings ─ which provide for a works council to be set up in all undertakings in which more than five workers entitled to vote are employed ─ apply as a
"condition of employment"
to local staff serving in the representation of the European Commission in Vienna. More specifically, the substantive issue in this connection is whether the applicable Community provisions on co-determination by local staff employed at a representation of the European Commission apply exclusively or whether there is latitude for parallel or supplementary application of national rules such as those laid down in the ArbVG on the same subject.
II ─ Legal framework
A ─
Provisions of Community law on the representation of and co-determination by the staff of the institutions
2.
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
(2) form the basis of the Staff Regulations of Officials of the EC (hereinafter
"the Staff Regulations"
) and of the Conditions of Employment of Other Servants of the European Communities (hereinafter
"the Conditions of Employment"
).
3.
The term
"official of the European Communities"
is defined in the first paragraph of Article 1 as follows:
"(a) For the purposes of these Staff Regulations a 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."
4.
Under Article 9(1)(a) of the Staff Regulations of Officials of the EC, a Staff Committee is set up within each institution:
"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 ... ;
─
one or more Disciplinary Boards ... ;
─
a Reports Committee, if required.
"
5.
The role of the Joint Committee, Disciplinary Boards and Reports Committee will not, apart from a single reference, be raised during the further discussion of the questions referred. It nevertheless appears to me useful for the sake of completeness to state for the record that although the Staff Committee is the most important internal body in which staff concerns can be aired, it is not the only one.
6.
Under Article 9(3) of the Staff Regulations the task of the Staff Committee is to represent the interests of the staff
vis-à-vis
their institution and maintain continuous contact between the institution and the staff. It also contributes to the smooth running of the service by providing a channel for the expression of opinion by the staff. More particularly, the Committee brings to the notice of the competent bodies of the institution any difficulty having general implications concerning the interpretation and application of the Staff Regulations and submits to the competent institution suggestions concerning the organisation and operation of the service and proposals for the improvement of staff working conditions or general living conditions. Finally, the Committee has the task of participating in the management and supervision of social welfare bodies set up by the institution in the interests of its staff.
7.
In accordance with Article 9(2) of the Staff Regulations, the composition and procedure of the Staff Committee is set out in more detail in Annex II to the Staff Regulations. Article 1 of that Annex indicates the composition of the Committee and lays down the maximum and minimum terms of office. It also specifies that every official of the institution concerned is entitled to vote and stand for election. The Committee and, if it is organised in local sections, those sections, must 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, the so-called other servants of the European Communities.
8.
On the basis of the scheme laid down in Article 9 of the Staff Regulations and Annex II to the Staff Regulations, the Commission's Staff Committee consists of a Central Committee and local sections corresponding to the various places where Commission staff are appointed. The members of the Central Committee are appointed from the local sections. The members of the local sections are elected by the officials and the other servants within the meaning of Article 7 of the Conditions of Employment. Officials who are not members of a local section are represented by the local section in Brussels. Since there is no local section for the staff appointed in Vienna, those officials and servants are represented by the Brussels section. They therefore participate in the elections for that section.
9.
As regards local staff and the way in which they are represented within the organisation of the institution concerned, Articles 1, 4, 7 and 79 to 81 of the Conditions of Employment are relevant.
10.
First of all, Article 1 of the Conditions of Employment states that those conditions of employment apply to all servants engaged under contract by the Communities. Such servants are temporary staff, auxiliary staff, local staff or special advisors.
11.
These categories of servants are defined in more detail in subsequent provisions. Article 4 of the Conditions of Employment specifies what is to be understood by
"local staff"
.
"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.
"
12.
As regards the representation of such local staff in particular, Article 7 of the Conditions of Employment 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."
13.
In Titles II, III, IV and V of the Conditions of Employment special rules are laid down successively for the temporary staff, auxiliary staff, local staff and special advisor categories. Title IV contains the following provision, Article 79, for local staff, which is central to the main proceedings and which forms the focus of the first question referred by the Oberster Gerichtshof:
"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.
"
14.
In order to give a better idea of the context of that Article, it is useful to quote the subsequent provisions of the Conditions of Employment:
"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.
"
15.
On 21 November 1989 the Framework rules laying down the conditions of employment of local staff of the Commission of the European Communities serving in non-member countries
(3) (hereinafter
"the Framework rules on non-member countries"
) were adopted on the basis of, in particular, Articles 4, 7, 79, 80 and 81 of the Conditions of Employment. Those rules entered into force on 1 January 1990 but did not become applicable until the entry into force of the special conditions laid down for each employment location.
16.
The special conditions in respect of the situation in Austria (hereinafter
"the special conditions for Austria"
) were adopted in 1994. The first article of those rules on the special conditions of employment for local staff working in Austria reads ─ in its German version ─ as follows:
"(a)
Die vorliegende Regelung legt die Sonderbedingungen für die Beschäftigung von in Österreich diensttuenden örtlichen Bediensteten und von Rechtsinhabern von Verträgen von bestimmter oder unbestimmter Dauer, oder welcher von der österreichischen Gesetzgebung als solche angesehen werden, fest.
(b)
Die gesetzlichen Bestimmungen der vorliegenden Regelung sind unbeschadet der zwingenden günstigeren österreichischen Gesetzgebung anwendbar
"
.
(4)
B ─
Relevant provisions of national law
17.
In Austria the term
"Arbeitsverfassungsrecht"
(labour relations law) is understood to mean that part of labour law which concerns the organisation, task, powers and reciprocal relations (consultation and collective agreements) involved in the protection of the interests of the workers within an establishment or across an industry, on the one hand, and the protection of the interests of an individual employer or employers across an industry, on the other, and the embodiment of collective labour law by other bodies.
18.
The most important source of labour relations law is the Arbeitsverfassungsgesetz ( "ArbVG"
). That Act lays down basic rules on three important areas of labour law, namely collective legal organisation within the establishment and between establishments (Part I of the ArbVG), labour relations in the workplace (Betriebsverfassung, Part II of the ArbVG) and organisation, division of powers and dispute settlement procedures (Part III of the ArbVG).
19.
Part II of the ArbVG contains all the provisions which create an organisation for the staff of an establishment (undertaking, concern), set them tasks and confer powers on them, principally
vis-à-vis
the management of the establishment. Those provisions are based on the premiss that the worker is affected by matters concerning the establishment. The starting point of the ArbVG as regards labour relations in the workplace is the coexistence of two opposing groups of people (the employer and the staff) and it gives the staff various powers.
20.
Under Paragraph 33(1) of the ArbVG, Part II of the Act on labour relations in the workplace applies to
"establishments of all types"
. The term
"establishment"
is defined in Paragraph 34(1) as any workplace 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 for profit or not. The scope of the rules of the ArbVG on labour relations in the workplace is determined by the territoriality principle. All workplaces located in Austria are covered by the ArbVG and are therefore subject to the obligation ─ where the other conditions are met ─ to set up a works council.
21.
However, Paragraph 33(2)(2) contains an exemption for the authorities, offices and other administrative agencies of the federal government, the Länder, the associations of local authorities and the local authorities. The laws of the Federal Republic or of the Länder on staff representation apply to those bodies. The defendant is not expressly mentioned in that exemption provision, nor is provision made in any other way for an exemption for an organisation as a defendant from the scope of Part II of the ArbVG.
22.
The obligation to set up within an undertaking a body to represent the staff is laid down in Paragraph 40(1) of the ArbVG. Under that provision, the staff bodies referred to in the subsequent provisions of Part II of the ArbVG must be set up in every establishment in which at least five workers who are entitled to vote (within the meaning of Paragraph 49(1) of the ArbVG) are employed. The most important body is the Betriebsrat (hereinafter
"the works council"
: Paragraph 50 et seq. of the ArbVG).
23.
The powers to be exercised by the works council on behalf of the workers are laid down in Chapter 3 of Part II of the ArbVG (Paragraph 89 et seq. of the ArbVG). They include the rights governed by Sections 1 and 2 of Chapter 3, such as the right to general information to be provided by the manager of the establishment (Paragraph 91 of the ArbVG). In addition, Paragraphs 96 and 96a subject a number of measures to mandatory or necessary co-determination. This means that such measures can only be lawfully adopted where the works council has approved them. The works council's approval of measures under Paragraph 96a of the ArbVG may be replaced, under subparagraph (2) of that provision, by decisions of an arbitration board.
24.
Paragraph 97(1), points 1 to 6a, in conjunction with Paragraph 97(2) of the ArbVG governs cases of
"enforceable co-determination"
in which, in the absence of a works agreement, it may be possible for a decision of an arbitration board to substitute for the settlement sought, while in the cases of
"optional co-determination"
referred to in Paragraph 97(1), points 7 to 23a and 25 of the ArbVG, the settlement sought cannot be reached in the absence of a works agreement.
25.
Under Paragraph 91(2) of the ArbVG the manager of the establishment must inform the works council of the personal data on workers which it intends to store on a computer, what it wishes to do with those data and to whom it will transfer them. The works council may, if necessary, enforce that obligation by legal action.
26.
Paragraph 96a of the ArbVG provides that the approval of the works council is required for the introduction of systems for the automated collection, processing and transfer of personal data on workers where such data consists of more than general personal details and the transfer of that data is not necessary for business purposes. Approval is not required where the actual or proposed use of such data does not go beyond the fulfilment of obligations under the law, the rules of collective agreements or an employment contract. The works council must grant its approval in the form of a (written) agreement. If the works council and the employer do not reach agreement, the manager of the establishment may, under Paragraph 97, force a settlement through the arbitration board. If the employer takes the measure without the approval of the works council and without recourse to the arbitration board, the works council may bring an action for the annulment of the measure which is invalid in those circumstances.
27.
Finally, Paragraph 53 of the Arbeits- und Sozialgerichtsgesetz (Labour and Social Courts Act, hereinafter
"the ASGG"
), gives the works council the right to be a party to legal proceedings. That legal provision must be regarded as the written statement of the general capacity of the works council to be a party to proceedings in labour cases. Paragraph 54(1) of the ASGG gives the works council the right to bring an action or be a defendant in an action within its sphere of operation which seeks to establish the existence or otherwise of rights or legal relationships affecting at least three employees of the establishment or undertaking.
III ─ Facts in the main action and course of the proceedings
28.
The Commission of the European Communities has established a representation in Austria (hereinafter
"the representation"
) which has the task of providing information on European matters. The staff of that representation consists of Commission officials on the one hand and of local staff on the other. The dispute concerns only the latter group.
29.
On 12 March 1998 a works council was elected at the representation. Thus Paragraph 40 of the ArbVG was implemented. The management of the representation was immediately informed of this election and of the creation of the works council. The representation did not oppose the creation of that body. According to the order of the Oberster Gerichtshof and the written observations of the works council the chairman and the vice-chairman of the works council are viewed by the representation as the local representatives of the local staff.
30.
Around a year later, in February 1999, elections were held to the Staff Committee of the European Commission referred to in Article 9 of the Staff Regulations. Local staff employed at the representation also took part in those elections. None of them was elected, however.
31.
At the end of October 1998 the works council wished to be informed about a monitoring device by means of which personal data on workers were recorded and processed each time they entered the office using a card with a microchip in conjunction with a code. Under Paragraph 96a of the ArbVG the approval of the works council is required, as stated above, for the introduction of systems for the automated collection, processing and transfer of personal data on workers where such data consists of more than general personal details and the transfer of that data is not necessary for business purposes. By introducing the monitoring system concerned without the approval required under Paragraphs 91 and 96a of the ArbVG, the Commission acted unlawfully, according to the plaintiff, and the system must, in its view, consequently be dismantled.
32.
The plaintiff has therefore claimed before the national court that the defendant should be ordered to inform it which personal data on workers are being stored in the monitoring system and to whom those data are being transferred. The plaintiff has also claimed that the defendant should be ordered to dismantle all equipment for the recording of personal data on workers unlawfully installed up to that date. Those claims were rejected both at first instance and on appeal.
33.
The court at first instance pointed out that the system of rules applicable to local staff is laid down in regulations which are directly applicable in the national legal system and take precedence over national legislation which is incompatible with them. It also took the view that the references to national law made in the Community rules concerned could only relate to individual rights. Finally, he ruled that since Article 9 of the Staff Regulations provided for a form of staff representation, there was no latitude for parallel application of the ArbVG. The fact that the rules based on Article 9 of the Staff Regulations were not as comprehensive as those laid down in the ArbVG was irrelevant, in his view. He added that the fact that a provision needed to be improved could not justify failure to apply it. Rather, it entailed a duty on the part of the competent legislative body to enact a better set of rules.
34.
The appeal court found essentially that both the Community rules and Austrian law applied to the contractual relationship between the local staff serving in Austria and the European Communities. Given that the scope of the ArbVG was determined by the principle of territoriality and the defendant therefore fell within the terms of that Act, the ArbVG applied in principle to the defendant. Nevertheless, the appeal court, proceeding on the basis of the primacy of Community law, pointed out that there was an irreconcilable contradiction between the Staff Regulations and the ArbVG on the issue of the capacity to be a party to legal proceedings. For that reason the capacity to be a party to legal proceedings which the works council derived from Paragraph 53(1) of the ASGG could not be relied upon against the European Communities. The appeal judge considered that principle to preclude the co-existence within the European Communities of the Staff Committee under Article 9 of the Staff Regulations and employee bodies with capacity to be a party to legal proceedings within the meaning of Paragraph 53(1) of the ASGG.
35.
In the appeal on a point of law the Oberster Gerichtshof, proceeding on the basis of the applicability, in principle, of the ArbVG to the representation, found that the parties disagreed on the significance and scope of Article 79 of the Conditions of Employment. Unlike the defendant, the plaintiff sees this provision as a comprehensive reference to the applicable national law, which, in view of the close connection between the law on employment contracts and the law on labour relations in the workplace, includes, in the case of Austria, a reference to the provisions of Part II of the ArbVG. The question also arises whether the provisions of the ArbVG are superseded by the rules in the Staff Regulations on staff representation. The Oberster Gerichtshof therefore stayed the proceedings and referred the following two questions to the Court for a preliminary ruling:
"1.
Is Article 79 of the Conditions of Employment of Other Servants of the European Communities, under which 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
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 the workplace laid down in Part II of the Austrian Arbeitsverfassungsgesetz (Labour Constitution Act)?
2.
Are the provisions of Article 9 of the Staff Regulations of the European Communities and those contained in Annex II to the Staff Regulations concerning the Staff Committee, which also represents the interests of local staff of the Communities, to be interpreted as laying down exhaustive rules on collective employment law and the powers of co-decision of local staff and thus as precluding the application of the law on labour relations in the workplace laid down in the Austrian Labour Constitution Act to local staff serving in the Vienna representation of the Commission of the European Communities?
"
36.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice, written observations have been submitted by the plaintiff (Betriebsrat) and the defendant (Commission) in the main action and by the German Government, the Austrian Government and the Swedish Government. On 11 February 2003 a hearing was held in this case at which the parties in the main action and the Swedish Government set out their positions in more detail. The Netherlands Government also set out its position during that hearing.
37.
On 13 December 2002 the Court asked the Commission to answer the question, submitted in writing, whether the Framework rules on non-member countries and the special conditions for Austria remained in force after the accession of the Republic of Austria to the European Union in relation to the situation of local staff serving in the Vienna representation of the Commission and, in the event that the answer to this was in the negative, which other rules applied to them. The Commission answered that question in the affirmative by a letter of 17 February 2003. The said rules continued to apply temporarily until such time as an adjustment was made by reason of the accession of Finland, Austria and Sweden.
IV ─ Assessment
Introduction
38.
The purpose of the main action is essentially to have it recognised that the works council (Betriebsrat) can exercise the powers which it derives from the relevant provisions of Austrian employment law on co-determination
vis-à-vis
the Vienna representation of the Commission as well. To put it another way, can a service of the Commission which is established in another Member State be subject to the applicable law of that State on representation, consultation and, where provision is made for this in national legislation, co-determination by workers who, under Community law, have the status of local staff?
39.
It will be clear that this case raises a question of principle regarding the relationship between national law and Community law, albeit in the still limited field of the influence which local staff of the European Union can exert on the management of a decentralised service of the Commission. In such a situation does Community law alone have effect or is there latitude for the supplementary application of national law? The fact that this case raises a question of principle is highlighted by the fact that its subject-matter falls within the field of fundamental social rights.
40.
Before addressing the specific questions referred by the Oberster Gerichtshof, I would like to make a few remarks of a more general nature concerning the background, rules and function of co-determination in the management of an undertaking or organisation and the great variety of systems which exist in the Member States in this area. It is of great importance for the answer to these questions, in my view, that the subject of employee participation in decision-making in undertakings and organisations is put in the correct context.
41.
Structures for co-determination have developed in a rather fragmented way in the various Member States. This has to do with the fact that the issue of the representation of workers within an undertaking is closely connected with industrial development, and that this has taken different courses in the different Member States. The first attempts at worker representation within undertakings can be traced back to the nineteenth century, when in the United Kingdom, for example,
"shop stewards"
were elected by workers to represent their interests
vis-à-vis
the employer. In Germany and also Austria at the end of the nineteenth century employers began to set up certain forms of worker representation with a view to counteracting the influence of the trade unions. In Italy too, the start of the twentieth century saw the setting up of the first worker committees, which were elected by all the workers. In the Scandinavian Member States, Denmark, Sweden and Finland, initiatives were likewise taken before the Second World War to achieve forms of worker representation. For the most part these resulted in firm structures only many years later. The development of works councils or comparable bodies in the Netherlands and Belgium did not take shape until after the Second World War.
(5)
42.
What is interesting about these developments is the philosophical basis on which representation was established. There is a distinction to be made between models in which the employer and the worker participate on an equal footing in a consultation structure and models in which the workers represent their own interests within the undertaking
vis-à-vis
the employer. There is also a difference in the legal basis in so far as in some Member States the powers of works councils are enshrined in law, while in other Member States the basis is to be found in collective agreements. Where there is an obligation to set up a works council, the criteria differ somewhat from one Member State to another. In certain cases the obligation to set up a works council arises where an undertaking employs 35 or 50 workers; in other cases that number is significantly higher, namely 150, 500 or 1 000 workers. It goes almost without saying that with all these differences of system, the powers of works councils must differ as well, the extremes of which consist of the right to be consulted and the right of co-decision, whether or not backed up by the possibility of enforcement through the courts.
(6)
43.
Of course I can only touch here on a few aspects of this wide field, but in my view what I have said above is sufficient to illustrate that the subject of co-determination is an extremely varied one in which national developments, traditions and cultures have had ─ and still have ─ a clear influence on the forms and gradations of co-determination that have been introduced. What appears to me to be of vital significance, however, is that the debate about those forms relates first and foremost to the organisation of the undertaking itself. Worker co-determination is rooted in the idea that since the operation of an undertaking or organisation depends on the joint efforts of management and staff, it is important that the staff too have the opportunity to take responsibility themselves for decisions that affect that operation. The interest served by co-determination is in other words the interest that the workers have in the actual running of the undertaking or organisation.
44.
The same applies within the Community, whereby I am not referring purely to the internal rules which apply in respect of the Community's own staff, but also to the Community directives that have been adopted on this subject and that have as their objective to stimulate dialogue between labour and management.
(7) The main idea in the case of the directive on the European Works Council is the equal treatment of employees of transnational undertakings with regard to information and consultation in the taking of decisions that may have (substantial) consequences for the interests of employees. The directive establishing a general framework for informing and consulting employees is designed to strengthen dialogue within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future of the undertaking and increase its competitiveness.
(8) These are clearly all aspects which relate to the organisation of the undertaking and which go beyond individual employment relationships.
45.
Co-determination by workers must therefore be seen as a means to structure industrial relations within an undertaking and as a means to share responsibility for the management of the undertaking. With a view to those ends the structure of the co-determination must be unitary in nature and all the staff must be able to participate on an equal footing. For this reason the rules on co-determination by workers are usually enshrined in legislation. It is against this background that the questions of the Oberster Gerichtshof must be answered.
The questions referred: two possible approaches
46.
The questions referred are like communicating vessels in that there is a direct connection between the answers to be given to the two questions. If the answer to the first question is in the affirmative (meaning that the term
"conditions of employment"
used in Article 79 of the Conditions of Employment also includes the national provision on co-determination) this means that the answer to the second question must be in the negative (meaning that Article 9 of the Staff Regulations is not exhaustive). Conversely, if the first question is answered in the negative this will imply an affirmative answer to the second question.
47.
The first legal issue concerns the significance and scope of the term
"conditions of employment"
used in Article 79 of the Conditions of Employment. Must the reference to national law for more detailed conditions of employment of local staff be understood to mean that those conditions include national provisions on co-determination as laid down in Part II of the ArbVG? In other words, must the term
"conditions of employment"
be construed narrowly in the sense that it is limited to the (individual) contractual aspects of the employment relationship between employer and employee, or is a broad interpretation possible with the result that the term also includes the (collective) organisational aspects of the work?
48.
The second legal issue is the exhaustiveness or otherwise of Article 9 of the Staff Regulations, which serves as the basis for the representation of and co-determination by the staff of the EC institutions. If it is found that that provision does indeed exhaustively regulate co-determination by local staff, then there is no latitude for parallel or supplementary application of the national provisions on co-determination. If the opposite is found to be true, then such latitude does exist.
49.
Thus it is possible to distinguish two approaches to the problems raised for discussion by the questions referred. One approach is the broad interpretation ( "conditions of employment"
includes co-determination; Article 9 of the Staff Regulations is not exhaustive) with the emphasis on the idea that co-determination serves to protect the worker. This is the approach taken by the plaintiff in the main action and by the Austrian Government, the Swedish Government and the Netherlands Government. The other approach is more restrictive ( "conditions of employment"
relates only to the individual contract of employment; Article 9 of the Staff Regulations is exhaustive) with co-determination being regarded as part of the internal order of an undertaking or organisation. This is the approach taken by the Commission and the German Government. I will first of all set out the main arguments in support of each view as presented by the interveners.
Observations submitted in favour of the broad interpretation
50.
The plaintiff postulates that nothing in the wording of Article 79 of the Conditions of Employment expressly indicates that the national provisions on collective labour law can be counted among the
"conditions of employment"
of local staff which must be determined in accordance with national law and practice in the place where the duties are performed. This possibility is not precluded by that provision either, however. According to the plaintiff, if the intention had been that the term
"conditions of employment"
should be interpreted narrowly, the Community legislature ought to have chosen a term that reflected this better, such as
"clauses of the contract"
. Since it did not, the term must be interpreted broadly as referring to all statutory and contractual regulations which in any way affect the legal position of the employees. The plaintiff refers in that connection to Article 39(2) of the EC Treaty, in which the term likewise appears.
(9)
51.
The plaintiff further argues that since Article 79 of the Conditions of Employment stipulates that the conditions of employment should be determined
"in accordance"
( "sur la base"
) with current rules and practice in the place where the member of staff is to perform his duties, account must be taken of all the relevant fundamental provisions of the national legal system concerned. In this connection the plaintiff refers to the judgment of the Court in
Vitari
.
(10) In that judgment, which to my knowledge is the only one concerned with this provision, the Court ruled that the reference in Article 79 of the Conditions of Employment to the current rules and practice of the place where the worker is to perform his duties
"merely means that the rules adopted by each institution may not conflict with the fundamental rules of the applicable national law"
.
(11) In the plaintiff's view this passage means that the
"fundamental rules"
concerned must be at least those rules from which there can be no departure by means of an agreement. These include in any event the relevant national provisions of collective labour law. The plaintiff adds that in the context of Article 79 of the Conditions of Employment national law has as its function not only to limit legislative power with respect to local staff but also to fill in gaps in the Community legislation, particularly in the field of legal protection.
52.
Besides these arguments of a more textual nature, the plaintiff refers next to the context of Article 79 in the Conditions of Employment as a whole. That provision has a central function within Title IV and has as its purpose to provide the local staff, on account of their social and political connection with the country of employment, with a level of protection corresponding to the national rules on the matter. The plaintiff points out, moreover, that the Framework rules on non-member countries and the special conditions for Austria contain provisions which cannot be counted as classic contract clauses, which include social security, complaints and appeals and disciplinary measures. The Conditions of Employment themselves also contain a provision regulating the right of employees to vote and stand for office, which has traditionally been considered part of collective labour law. Finally, the plaintiff takes the view that the Charter of fundamental rights of the European Union, and in particular Articles 28 and 30 thereof, show that there is an indissoluble connection between the law on contracts of employment and the law on collective labour relations.
53.
As its last point relating to Article 79 of the Conditions of Employment the plaintiff argues that that provision has as its aim to provide effective protection to local staff against the adoption of working conditions which are incompatible with local rules and practice. The fact that national law takes precedence in this area is apparent not only from the reference to national rules but also from the reference to unwritten law, namely simple practices and customs.
54.
As regards Article 9 of the Staff Regulations the plaintiff takes the view that the Staff Committee only has the right to be heard and that its rights of co-determination have been regulated in only a fragmentary way. Moreover, it represents the staff in relations with the institution itself and therefore not in relations with part of a service, such as the representation. In these circumstances, attributing an exhaustive nature to Article 9 would be inconceivable. Assuming that the Community legislature intended to establish a definitive and exclusive set of rules in Article 9, this would amount to ascribing to that legislature the intention of making effective representation of staff interests impossible.
55.
To this the plaintiff adds that, provided it is not contrary to Community law, national law can be applied alongside Community law in so far as Community law has not exhaustively regulated a particular area. The fact that the ArbVG provides for the setting up of a works council for the same category of persons is not in itself incompatible with the Community rules concerning the Staff Committee. On the one hand there is no conflict if the national rules are intended only to supplement the Community rules, which evidently meet only minimum requirements. On the other, a rule of Community law, such as Article 9 of the Staff Regulations, which does not achieve the objective pursued cannot take precedence.
56.
Proceeding from the idea that the primary purpose of labour law is to protect the worker, the Government of the Republic of Austria points to the special situation of local staff. Unlike the rest of the
"other servants"
of the Communities, they are connected only marginally, given the predominantly executive nature of their activities, with the institutional structure of the Commission. To assume in those circumstances that the term
"conditions of employment"
used in Article 79 of the Conditions of Employment did not include collective labour law would result in discrimination between local staff on the one hand and other servants on the other, given that the former do not then really have a representative body that is in a position to represent all their interests. The Staff Committee is not equipped to do that, particularly also because extensive knowledge of national law is necessary in order to do so. The protective purpose of Article 79 therefore precludes an interpretation which makes it possible to draw a distinction between the individual and collective aspects of employment relationships.
57.
The Austrian Government takes the view that its approach is confirmed by the fact that Article 79 of the German version of the Conditions of Employment uses the term
"Beschäftigungsbedingungen"
. Although the substance of this multi-facetted term is illustrated with a non-exhaustive selection of subjects relating to the individual employment relationship, that provision does not preclude the collective employment rules from being covered by it as well. The Austrian Government also refers in this connection to the rules on the right to vote and stand for office laid down in Article 7 of the Conditions of Employment, which falls outside the framework of the individual employment relationship. In its view, the passage from the
Vitari
judgment
(12) which was cited in this connection means that when determining the working conditions of local staff the national legal system as a whole must set the direction. The reference can therefore be said to be a broad one to Member States' national law in its entirety, the underlying idea being that of achieving equal treatment of local staff and other employees working at the place concerned.
58.
As regards the second question, the Austrian Government points out that the principle of the primacy of Community law only entails the disapplication of national law in the event of a conflict between that law and Community law. There is, however, no such conflict in this case between Austrian law on labour relations in the workplace and the somewhat fragmentary rights of the Staff Committee. The two categories of rules should instead be assumed to co-exist. By referring in Article 79 of the Conditions of Employment to the national law, and in the light of the principle of equal treatment of local staff and other workers at the place concerned, Community law recognises in this respect the possibility of dual representation by the works council and the Staff Committee.
59.
The Swedish Government points out by way of a preliminary point that Article 79 of the Conditions of Employment must be construed as meaning that although it gives the Community institutions some discretion when determining the conditions of employment of local staff, it does not allow them to lay down conditions of employment which differ fundamentally from those which apply to other workers in the country concerned. This also follows from the
Vitari
judgment.
(13) The reference in that provision to national law must be construed as meaning that when determining the conditions of employment of local staff, the basic requirements of national law must be taken into account.
60.
Where the Oberster Gerichtshof proceeds in its questions on the basis of the division made in Austrian law into (collective) law on labour relations in the workplace and other parts of labour law, the Swedish Government points out that the Court cannot use such a division as a criterion when interpreting Community law. Concepts of Community law must be interpreted autonomously. It is true that when making that interpretation account must be taken of common traditions of the Member States but, according to the Swedish Government, the division made in Austrian law cannot be traced back to such a tradition. Employment law is, precisely, a field in which the Member States' legal systems differ widely. Community law has no such division either. Measures which are taken on the basis of Article 137 of the EC Treaty in order to achieve the objectives of Article 136 of the EC Treaty,
inter alia
in the field of the conditions of employment and the information and consultation of workers, may ultimately work their way through to individual conditions of employment. The Swedish Government therefore takes the view that there is no reason whatever to assume that there are categories of legal rules which are not covered when reference is made in Community law to national law. If it can be assumed that the Austrian provisions play a central role in Austrian labour law, then those provisions should be applied to the conditions of employment of local staff, provided of course that the application of those rules is not inconsistent with any rule of Community law.
61.
As regards Article 9 of the Staff Regulations, the Swedish Government takes the view that such a rudimentary scheme cannot be regarded as an exhaustive scheme in respect of the rights of local staff. If it could, this would mean, as far as the Swedish situation is concerned, at any rate, that the conditions of employment of local staff would differ fundamentally from those of other workers. This would not be in keeping with the basic idea that underlies the rules on the legal position of local staff. The rules contained in the Conditions of Employment must be regarded as minimum rules. The Community institutions must take account of fundamental provisions of national law which provide further-reaching protection, provided there is no direct conflict with Community rules. No such conflict exists in the election of the works council by the local staff of the Vienna representation of the Commission.
62.
The Netherlands Government argues with regard to the question about the applicability of the ArbVG that it is necessary to proceed first and foremost on the basis of the principle of territoriality. Under that principle the representation of the Commission is subject to Austrian labour law, save where expressly stipulated otherwise. In the absence of any such express provision, including in the Protocol on Privileges and Immunities of the European Communities of 8 April 1965, it must be assumed that the ArbVG applies in full to the representation.
63.
In the opinion of the Netherlands Government, Article 79 of the Conditions of Employment confirms that the Community institution concerned must take the principle of territoriality as the guiding principle when determining the conditions of employment and the other aspects of labour law applicable to local staff. In this context the distinction that is made between collective and individual labour law is irrelevant. The staff concerned must be given a level of protection equal to the level of the national legislation. Although that judgment regarding equality is reserved to the national court, the Netherlands Government believes that the Austrian legislation affords far-reaching protection in the matter of co-determination by workers, with the result that Community law must give way here.
64.
Following on from this position, the Netherlands Government takes the view that Article 9 of the Staff Regulations does not contain an exhaustive set of rules on the representation of local staff.
Observations submitted in favour of the narrow interpretation
65.
The Commission made its observations in its capacity as the defendant in the main action. It points out at the outset that the representation forms part of the internal organisation of the Commission. The job of the representation is to represent the Commission's interests in Austria and to provide information on the European Union generally. Under Article 7 of the Conditions of Employment, local staff have the right both to vote and to stand for office in elections to the Staff Committee. Although no representatives of the Vienna representation were elected to the Staff Committee in the 1999 elections, a local member of staff of another representation was elected. The Commission takes the view that the ArbVG does not apply to it, that the setting up of the works council is invalid and that the works council therefore does not have the capacity to be a party to legal proceedings.
66.
As regards the answer to the first question, the Commission believes that a distinction must be made between collective and individual labour law. In its view Article 79 of the Conditions of Employment relates solely to individual labour law. This is apparent not only from the examples included in that provision but also from the system of the Conditions of Employment. Thus the Commission points out that Article 7 of the Conditions of Employment on the right to vote in elections and stand for election, which must be counted as part of collective labour law, is included in the general provisions of the Conditions of Employment which apply to all staff and therefore do not come under national law. It is only the rules that have to be applied in the individual employment relationship that must be modelled on national law. The rules on representative bodies and their powers do not fall within this category.
67.
Any other interpretation would, in the Commission's view, run counter to the system of the Conditions of Employment, which, on the one hand, lay down general provisions applicable to all categories of servants and, on the other, lay down special rules for each category of servant separately. In view of the fact that no rules are provided for other categories of servants in the field of collective labour law and that Title IV of the Conditions of Employment cannot be viewed in isolation from the other provisions of that set of rules, the reference made in Article 79 to national law can only refer to those special rules, i.e. the rules relating to the individual employment relationship: the manner of engagement, rights and obligations, working conditions, pay, social security and termination of contract.
68.
The Commission answers the second question, which concerns whether Article 9 and Annex II to the Staff Regulations are exhaustive, in the affirmative. The Commission points out that the collective aspects of the employment relationship and the right of local staff to be heard are laid down in a regulation and that that regulation takes precedence over any provision of national law which is incompatible with it. The job of the Staff Committee is in general terms to represent the interests of the staff as a whole, irrespective of the legal position or place of engagement of the member of staff concerned. It would be inconsistent with the general character of the committee's job for a section of the staff to be represented by a competitor body.
69.
It is also necessary to take into account in this connection the fact that different decisions which, under the Austrian law, have to be submitted to the works council are usually taken by the central services of the Commission in Brussels and that it is necessary in that connection to take account of more interests than just those of the staff at one particular workplace. The representation of the Commission is not an independent institution but rather forms part of the general structure of a Community institution. The Staff Committee is also part of that structure and affords all staff, including those at the representation, the opportunity to represent their interests through that channel. This is further emphasised by the fourth paragraph of Article 1 of Annex II to the Staff Regulations, which provides that the Staff Committee must be constituted such as to ensure the representation also of the servants referred to in Article 7 of the Conditions of Employment.
70.
In the Commission's view, dual representation would destroy the coherence of the system of representation within the institutions and make it less effective. Conflicts and differences of view would be inevitable, given the differences in the tasks and powers of the Staff Committee and a body such as the works council. In the Commission's view, representation of servants should take place through only one channel and, assuming the primacy of Community law, that must be the Staff Committee.
71.
It is clear from a comparison of the possibilities for participation in management by a works council set up under the ArbVG on the one hand and by the Staff Committee on the other that the works council has further-reaching powers. Where the plaintiff argues that the Community rules amount to only a rudimentary outline of a system of co-determination, the Commission points out that the Community system makes it possible for the Staff Committee ─ including through the Joint Committees ─ to play an important and effective part in practice. By determining the conditions of employment of local staff on the basis of national law, sufficient account is taken, in the Commission's view, of their close links with the Member State of employment. Finally, although these cannot be regarded as representatives in the true sense of the word, it is also important that at every Commission workplace there are staff spokespersons who can bring problems to the attention of both the on-site management and the Staff Committee. The Commission's conclusion is therefore that the collective aspect of employment law that applies to servants, including local staff, is exhaustively regulated at Community level.
72.
The German Government contends that neither on the basis of the wording of Article 79 of the Conditions of Employment nor on the basis of Article 9 of the Staff Regulations in conjunction with Annex II to the Staff Regulations, in this case, does Austrian law on labour relations in the workplace apply to the situation which is the subject-matter of the present dispute. If, by way of exception, national employment law must be declared applicable to the industrial or employment relations between the Community institutions and their servants, that can only take place through Community law. In the absence of an express reference in Article 79 of the Conditions of Employment to the national law on collective industrial relations, it must be found,
a contrario
, that this part of national employment law does not apply to local staff.
73.
In the German Government's view, this position is consistent with both the objectives of national law on labour relations in the workplace and the objectives of the Staff Committee. While it is true that as regards the scope of national legislation broadly speaking it is necessary to proceed on the principle of territoriality, that legislation does not take account of the particular function and the organisation of representation of the Commission abroad. Where the national provisions on co-determination give workers a degree of involvement in decision-making within the undertaking, it must be recognised that the directors of a Commission representation no more take decisions on operational management than do the heads of diplomatic or consular representations. Their primary task is to protect the interests of the State or (international) organisation that they represent. In particular they must avoid becoming involved in local
"trade union"
conflicts.
74.
To put it briefly, national provisions on labour relations in the workplace are not suitable to be applied to the internal organisation of such representations. Whenever a State declares such a procedure to apply to its own government, the procedure is a national statutory measure which cannot be binding on international or supranational organisations or other Member States that have a representation in the country concerned. On the other hand, it is perfectly possible for an institution or a State to reserve the right to take measures to involve staff at representations abroad in the development of rules on working conditions. The Community institutions, taking into account their own function and organisation, have therefore adopted a special set of rules on staff representation which, if it is not to run the risk of being undermined, must take precedence over national legislation on labour relations in the workplace. The concurrence of national and community rules in this area could, in the German Government's view, lead to absurd consequences. At present the Community has its own specific set of rules which is tailored to its own function and organisation. If the force of that set of rules could be eroded by the application of national law, this would be contrary to the intention of the Community legislature.
75.
Finally, the German Government points out that the unconditional application of Community law in this matter is ensured by the rule of international customary law, which guarantees the freedom to set up the internal organisation of representations abroad. Moreover, care needs to be taken that Community law on staff representation is applied in the same way both within and outside the European Union. In other words, it also applies to representations of the Union in non-member countries. If it were possible for a host country to declare its national law in the field of co-determination applicable to a representation of the Union, this would open the possibility of unlawful influence and could impair the fulfilment of the representation's mission in the interest of the Union.
Analysis and answers to the questions
76.
As I stated in my introductory remarks, the purpose of the action before the Austrian court is to have a body set up at the representation of the Commission of the European Communities which, in accordance with the ArbVG, represents the local staff and can exercise the powers ensuing from the ArbVG. A legal basis must be found for this and, since we are dealing here with an employment relationship governed by Community law, the question in the first instance is whether that basis can also be found in Community law. If not, the question is whether Community law allows national labour law, more specifically the national law on labour relations in the workplace, to be applied in this case by way of supplement.
77.
These are the questions, expressed in more general terms, which lie behind the two questions referred for a preliminary ruling. The question as to the scope of the term
"conditions of employment"
contained in Article 79 of the Conditions of Employment is a reference to the Community basis. The question whether Article 9 of the Staff Regulations is exhaustive is a reference to the possibility of supplementary application of the national legislation.
78.
I have already stated in my introductory remarks that the subject of worker co-determination must be seen first and foremost as a question that relates to the organisation of an undertaking or institution. The issue is the way in which decisions that affect the operation of the undertaking or institution are made within the undertaking or institution. The interests of the different categories of worker also play a part, of course, but the criterion for the contribution made by those categories must always be the extent to which the undertaking or institution concerned can best achieve its objective in the interest of everyone involved at the undertaking or institution.
79.
As regards the local staff at the Vienna representation of the Commission, there are two channels through which they can practise co-determination: the Staff Committee referred to in Article 9 of the Staff Regulations and the works council referred to in Paragraph 40 in conjunction with Paragraph 50 of the ArbVG. It is not disputed that the powers of the works council established under national law extend further than those of the Staff Committee and that the ArbVG thus ensures a more effective form of worker co-determination. It is understandable, from that point of view, that the servants concerned are trying to engineer the situation such that the works council actually obtains formal status at the representation. Is that legally possible, however?
80.
The arguments focus on the interpretation of Article 79 of the Conditions of Employment, which form the basis of the employment relationship between the local staff concerned and, in this case, the Commission. On the basis of that provision, the conditions of employment of those staff are determined by each institution in accordance with current rules and practice in the place where they are to perform their duties. In order to indicate which conditions of employment must be determined in each case in accordance with the national law, explicit mention is made in a non-exhaustive list in that provision of the aspects
"the manner of their engagement and termination of their contract"
,
"their leave"
and
"their remuneration"
.
81.
It is precisely in connection with the non-exhaustive nature of that list that the question is whether the term
"conditions of employment"
is broad enough to be able to cover provisions on co-determination, with the result that where local staff are concerned the Community institutions must also take account of national rules in this area.
82.
The plaintiffs and the Austrian Government, the Swedish Government and the Netherlands Government have put forward arguments of a textual, systematic and teleological nature to show that the term
"conditions of employment"
must be interpreted widely and that the reference to the national legislation which the Community institution must take into account when determining those conditions is broad in nature. The Commission and the German Government, on the other hand, have argued that this term can have only limited significance and relates solely to the individual aspects of the employment relationship. I have already set out the main arguments for and against in detail above.
83.
I would first like to state that the term
"conditions of employment"
contained in Article 79 of the Conditions of Employment, which forms part of Regulation No 259/68, is a Community term whose content must be determined on the basis of the aim and function of the set of rules in which it is used. I share the Swedish Government's view that national divisions of an area such as labour law whereby the generic term conditions of employment is subdivided into a collective part and an individual part cannot be used to determine the content of this Community term. In the same spirit, the German term for
"conditions of employment"
, Beschäftigungsbedingungen, cannot, contrary to what the Austrian Government argues, be used to define the term conditions of employment. While it is true that legal traditions and terms which the Member States have in common can serve in certain cases to define Community terms more closely, the diversity in this area is, as I have already observed, too great for that in this case. Be that as it may, the actual function of a Community term in the context of the body of Community rules concerned must always be the primary consideration when the substance of that term is being determined.
84.
If that function is taken as the basis on which to proceed, it must be noted that the Vienna representation of the Commission forms an integral part of the formal organisation of the Commission. The issue in this regard is the employment relationship between an institution of the European Union and a category of servants of that institution. The conditions of employment which apply to that employment relationship pursuant to Article 79 of the Conditions of Employment are determined by the Community institution concerned. On the basis of that provision the said institution uses the rules and practice of the place of employment as a reference framework, but the conditions of employment themselves have a Community basis. National labour law is not incorporated into them by means of a reference. The substance of national rules is adopted in so far as that is necessary and helpful for the employment relationship with the local staff and affords them a minimum guarantee that their employment contracts are being entered into under conditions which are the same as or equivalent to the conditions which they would enjoy with a local employer.
85.
I understand the judgment of the Court in
Vitari
,
(14) which has already been mentioned several times, in the same spirit. The dispute at issue in that case concerned the question whether a member of the local staff who had concluded a fixed-term contract of employment with the European Training Foundation could rely upon a provision of Italian legislation according to which, bar a few exceptions, employment contracts had to be concluded for an indefinite period. In that case the applicable Community rules likewise provided for the conclusion of contracts of indefinite duration, with the result that there was no contradiction on that point between the national and Community rules. The dispute came to a head over the question whether there were circumstances that justified a contract being concluded for a fixed term in derogation from the main rule. This was the context in which the Court placed paragraph 23 of its judgment, which all the parties have cited and which reads as follows:
"It may not, however, be concluded from Article 79 of the Conditions that the national law of the State in which a member of the local staff performs his duties is to be applied, as it stands, to the employment relationship between a Community institution and a member of the local staff. That article clearly states that the conditions of employment of local staff are to be determined by each institution in accordance with current rules and practice in the Member State where the worker is to perform his duties, which merely means that the rules adopted by each institution may not conflict with the fundamental rules of the applicable national law."
86.
Since that judgment clearly concerned subject-matter which related to the conditions of employment in the narrow sense (in that case the duration of the contract of employment), I believe that by its reference to
"the fundamental rules of the applicable national law"
the Court can only have meant the fundamental rules of national law which related to the nexus of problems at issue in that case. It would be going too far, in my view, to read that passage as saying that the term
"fundamental rules"
refers to the whole of national law, including in so far as that law governs subjects that lie outside the scope of the contract of employment concerned. Rather, by qualifying its reference to the basic rules by saying that they must be of the
"applicable"
national law, the Court means, in my view, that the provisions of national law which are relevant to the contract of employment are determined by the substance of that contract and not the reverse.
87.
It appears from the first sentence of paragraph 23 of the
Vitari
judgment,
(15) which I have already cited, moreover, that the national law cannot of itself apply to the contract of employment between the Community institution and the member of the local staff. The incorporation of substantive elements of national law into the employment relationship with the local members of staff can, as also the German Government has observed, only take place by means of an express Community act. Pursuant to the express reference in Article 79 of the Conditions of Employment, national law serves in this context as a binding guideline for the conditions of employment which are to be determined. As far as determining the content of the contract and therefore of the conditions of employment to be applied in that context is concerned, the national law restricts the policy freedom of the Community institutions. This is also the implication of the final passage of the paragraph cited.
88.
Taking a step back from the wording of Article 79 of the Conditions of Employment and looking at the system of those Conditions, I observe that that set of rules is constructed so that Title I comprises general provisions that apply to the different categories of staff governed by that set of rules and that in the following four Titles specific provisions are laid down for each category separately. For the groups
"temporary staff"
and
"auxiliary staff"
in particular, rules on
"Rights and Obligations"
(which refers to corresponding provisions in the Staff Regulations),
"Conditions of Engagement"
,
"Working Conditions"
(mainly hours of work and leave are dealt with under this heading),
"Remuneration and Expenses"
,
"Social Security Benefits"
,
"Appeals"
and
"Termination of Employment"
are laid down in separate Chapters. Since Title IV refers to national law for amplification of these same aspects of the legal position of local staff, the substantive scope of Title IV cannot, in my opinion, go further than the aspects that have been regulated in the other Titles. It would, in short, be contrary to the system of the Conditions of Employment to assume that on the basis of Article 79 matters could be regulated for which no rules had been adopted in respect of the other categories of servants.
89.
The argument that the Conditions of Employment contain provisions which cannot strictly be counted among the individual conditions of employment and thus fall instead within the collective sphere (such as Article 7 on the right to vote in elections and stand for election and Article 81 on dispute settlement), with the implication that the non-exhaustively illustrated term
"conditions of employment"
used in Article 79 of the Conditions of Employment has a broader scope than just the individual employment relationship, therefore fails, in my opinion, to appreciate the purpose of that set of rules. It can be seen from the system and content of the Conditions of Employment that Article 79 is not intended to regulate aspects of the employment relationship any more than has been done for the other categories of staff in the Conditions of Employment. Only the way in which that is done is regulated differently for local staff in connection with the special circumstances of those servants.
90.
This brings me to the aspect of the objective of Article 79 of the Conditions of Employment and the possibility of specifying the meaning of the term
"conditions of employment"
in more detail by means of a teleological interpretation. It has been pointed out, in particular by the plaintiff, that Article 79 has the purpose of affording specific protection to local staff against having to enter into an employment relationship with a Community institution on conditions of employment that are incompatible with the rules and practice in force in the country where the worker performs his duties. For this reason it must be concluded, according to that line of reasoning, that national law has primacy over the Community provisions in this area. That can be seen
inter alia
from the fact that in Article 79 of the Conditions of Employment reference is even made to simple local practice. In view of this purpose of protection, the reference to national law made in Article 79 of the Conditions of Employment must therefore necessarily be construed as a general reference.
91.
It seems to me that when laying down Article 79 of the Conditions of Employment the Community legislature certainly had the interests of local staff in mind, but, as may appear from my foregoing observations, I take the view that the protection intended is more limited than the plaintiffs have argued it is. Precisely because local staff work in a familiar environment and are somewhat removed, as regards their duties, from the activities of the Community institution which they serve, the obvious thing to do is attune their conditions of employment to local conditions rather than impose on them the central conditions of employment which are designed to help accomplish the mission of the institution concerned. This does not apply to the rules on co-determination, however, which have more to do with the structure of the organisation as such.
92.
It is perhaps useful to specify on this point that a distinction must be drawn between the (collective) right to the existence of a structure for worker co-determination ─ which corresponds to an employer's duty to set up such a structure ─ on the one hand and the (individual) right of the worker to participate both actively and passively within such a structure on the other. In so far as a link can indeed be made between co-determination and
"conditions of employment"
, it would have to be found in this latter, individual aspect. In my view, however, that characterisation would again detract from the fundamental nature of the worker's right to participate in the co-determination structure of the undertaking or organisation in which he is employed. That right is usually ensured in some way other than through the notice of
"conditions of employment"
.
(16) As regards the internal organisation of the Union, that right is guaranteed through the combined provisions of Article 9 of the Staff Regulations, Article I of Annex II to the Staff Regulations and Article 7 of the Conditions of Employment.
93.
On the basis of this analysis of the textual, contextual and teleological approaches to the term
"conditions of employment"
used in Article 79 of the Conditions of Employment, I reach the conclusion that this term must be construed in a restricted sense and that it refers only to elements of the individual employment relationship such as, in particular, the elements mentioned in Titles II and III of the Conditions of Employment. That provision therefore cannot be interpreted as a general 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 the workplace laid down in Part II of the Austrian Arbeitsverfassungsgesetz.
94.
To this I would add that this conclusion is not altered by Article 1 of the Special Arrangements for Austria, on the basis of which the provisions of those rules apply without prejudice to more favourable provisions of binding Austrian law. This reference too cannot exceed the substantive scope of those rules, in my view. Since those rules are limited to determining conditions of employment in the narrow sense, that Article cannot be relied upon either as the basis for establishing a works council founded on national law at the representation of the European Commission.
95.
Since the setting up of a works council in accordance with Paragraph 40 of the ArbVG at the Vienna representation of the Commission cannot be based on a broad interpretation of the term
"conditions of employment"
used in Article 79 of the Conditions of Employment, the question is whether Community law, and in particular Article 9 of the Staff Regulations, which concerns the Staff Committee, allows scope for this. This is the subject of the second question referred by the Oberster Gerichtshof. Is Article 9 exhaustive and does it therefore preclude a works council from being set up at a representation of the Commission on the basis of the national law on labour relations in the workplace? Or does that Article allow scope for the parallel or supplementary application of national law on labour relations in the workplace?
96.
When answering this question the first consideration must be that the institutions of the European Union were set up in order each to contribute, on the basis of their own missions, to achieving the Union's objectives. The internal organisation of the institutions is geared to this. In the interest of the smooth running of the institutions provision is made under Article 9 of the Staff Regulations for the setting up of a Staff Committee within each institution. It can be seen from Article 9(3) of the Staff Regulations that the purpose of those Staff Committees is to represent the interests of the staff, but that this is done ultimately in the interest of the smooth operation of the institution concerned. To illustrate this I will quote briefly, and in so far as is relevant, from Article (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.
...
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.
...
"
97.
In this way the Community legislature created its own internal rules on staff co-determination which, it may be assumed, are in its view tailored to the needs of the various institutions and performance by them of their missions. The question, however, is whether co-determination, in particular by local staff, must take place solely through those Staff Committees.
98.
I would point out in this connection that the institutions of the European Union work within the Community's own legal system and are autonomous within it. The institutions of the European Union operate, from the internal, organisational point of view, entirely independently of the Member States. This is a consequence of their task of operating in the interest of the Union and is also a fundamental condition for the performance of that task.
99.
This principle of the autonomy of the Community institutions was also emphasised by the Court in a judgment concerning a case in which, despite important differences of fact, the problem underlying the legal question at issue bore some resemblance to the situation in the present case. I am referring here to the judgment in
Tordeur
,
(17) which, although it was cited in the abovementioned
Vitari (18) case, has not been invoked by any of the parties intervening in the present dispute. That case concerned the situation of a temporary worker who had been placed at the European Commission's disposal by two different temporary-staff agencies and who in reliance upon certain provisions of Belgian labour law claimed that the employment relationship should be converted into a contract of employment of indeterminate duration. When answering the question whether the Commission was bound in such a case by the provisions of national law concerned, the Court held:
"It is true that a temporary worker cannot be denied social protection solely on the ground that he has been placed at the disposal of a Community Institution.
However, such protection cannot be provided by means which encroach upon the autonomy of the Community institutions in this area
. ... [I]t is not possible for a contract of employment with a Community institution,
a fortiori
a contract of employment of indeterminate duration, to come into being as a result not of a decision of the designated competent authority but of the fact, even where it is supported by a decision of a national court, that certain statutory provisions of the Member State in which that institution is situated which relate to temporary work have not been complied with." (19)
100.
It appears to me that the rationale behind that finding of the Court is further strengthened by the present case, since we are concerned here not with the conclusion of a contract of employment of indeterminate duration with a temporary worker as the penalty for infringing national labour law but with a situation where a body set up under national labour law could exercise powers derived from the same national labour law
vis-à-vis
part of a service of the Commission and thereby could influence the internal organisation of the Commission. It seems obvious to me that such a form of influence is diametrically opposed to the principle of the autonomy of the Community institutions.
101.
It must be stated that the Community provisions on staff co-determination through the Staff Committee on the one hand and national provisions on worker co-determination, such as the provisions of Part II of the ArbVG, on the other each operate within their own legal sphere and that those provisions are also tailored entirely to the specific characteristics of the legal systems within which they apply. Despite the reference in Article 79 of the Conditions of Employment to the law in force in the place where the local staff are to perform their duties, the questions referred by the national court therefore cannot, in my view, be regarded as a conflict between the Community and national legal systems which can be resolved by recourse to notions of the primacy of Community law or, on the contrary, of the complementarity of national law. This is an issue that relates purely to the internal legal system of the Community.
102.
I would point out, moreover, that it is an important condition for the functioning of co-determination procedures that all servants are represented within them on an equal footing. This principle of equality is also laid down for relations within the European Union in Article 1 of Annex II to the Staff Regulations.
(20) If it had to be assumed that certain categories of staff, such as in this case local staff, could, on the basis of national employment law in addition to the available Community provisions, be represented by their own works council, this would create an unacceptable inequality between the different groups of servants of the Union and also be detrimental to the co-determination structure within the Community.
103.
Added to this is the fact that measures which form the subject-matter of co-determination are usually adopted by the competent authority, which in the case of the representation, is constituted by the central services of the Commission in Brussels. To that extent, co-determination exercised by a works council established on the basis of a national law and which derives its powers from that national law is inappropriate in the Community context, including in substantive terms. The scope of the Community measures concerned goes beyond the national legal orders and therefore the powers of a works council established on the basis of national law.
104.
The Netherlands Government has argued that as regards the possibility of applying the provisions of the ArbVG to the Vienna representation of the Commission, the principle of territoriality must be the basis on which to proceed. Since the representation is established in Austria and application of the ArbVG to the representation is precluded neither by an explicit provision of Community law nor by the ArbVG itself (in particular Paragraph 33(2)), the representation is subject, the Netherlands Government argues, to the ArbVG.
105.
The German Government too has stated that as regards the scope of the ArbVG the principle of territoriality must be the basis on which to proceed, but has added that the ArbVG takes no account of the special situation and the special mission of a body such as a representation of the Commission. The task of such a representation is to represent the interests of the Union in the host country and generally to provide information about the European Union. The German Government has also referred to the principle of international customary law on the basis of which States and international organisations are free to organise their representations in the host country as they see fit. As a final point it has drawn attention to the danger of influence being exerted over the institution and the performance of its mission, which would become even more acute if it had to be assumed, on the basis of the principle of territoriality, that representations of the European Union in non-member countries could be subject to the legislation on co-determination in force there.
106.
In view of my position on the conflict with the principle of the autonomy of Community institutions, I fully subscribe to the German Government's position on this point.
107.
As a further argument against the dual representation of staff through the Staff Committee and the works council, the Commission has drawn attention to the conflicts which could arise if contradictory advice were given through the two channels for co-determination or if the Commission were, in certain cases, obliged under the ArbVG to obtain the approval of the works council. The Swedish Government and the Austrian Government, amongst others, have argued that co-determination from different sources need not be problematic and that in practice there are examples where this works well. I consider the possibility of conflicts in the event of dual representation not inconceivable. For me this is not a decisive argument in support of the exclusive position of the Staff Committee, however. As I have said, this position is based on a higher principle of Community law.
108.
By way of objection to an exclusive role for the Staff Committee the plaintiff, the Austrian Government and the Swedish Government have also pointed to the rudimentary nature of the Community rules on co-determination by comparison with, at any rate, the Austrian law in this field. Although I have already acknowledged at point 79 above that this could in fact be the case, this nevertheless does not alter my position on the main proceedings. The quality or effectiveness of the co-determination structure of the Community itself is not being assessed in this case. I agree with the court at first instance that the fact that a set of rules can perhaps be improved cannot justify not applying it. Such a case provides an opportunity for the legislature to assess whether the applicable rules must be adjusted or tightened up.
109.
On the basis of these observations and in particular the point that the provisions of the Community and of the Republic of Austria on co-determination apply in separate legal spheres I arrive at the conclusion that Article 9 of the Staff Regulations provides for an exhaustive set of rules on co-determination for the officials and other servants of the Community.
V ─ Conclusion
110.
I therefore propose that the Court answer the questions referred by the Oberster Gerichtshof as follows:
(1)
Article 79 of the Conditions of Employment of Other Servants of the European Communities, under which 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
are to be determined by each institution in accordance with current rules and practice in the place where they are to perform their duties, is not to be understood as containing a general reference to the relevant national law on employment, which, in the case of the Republic of Austria, also requires the application of the law on labour relations in the workplace laid down in Part II of the Austrian Arbeitsverfassungsgesetz.
(2)
The provisions of Article 9 of the Staff Regulations of the European Communities and those contained in Annex II to the Staff Regulations concerning the Staff Committee, which also represents the interests of local staff of the Communities, are to be interpreted as laying down exhaustive rules on collective employment law and the powers of co-decision of local staff and thus as precluding the application of the law on labour relations in the workplace laid down in the Austrian Labour Constitution Act to local staff serving in the Vienna representation of the Commission of the European Communities.
(1) .
(2)
OJ, English Special Edition 1968 (I), p. 30.
(3)
Published only in English and French in the Notices of the administration of 22 June 1990.
(4)
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.
(5)
I obtained this information from the comparative study by Prof. Dr R. Blanpain,
"Information and consultation of employees, A comparative overview"
, published in R. Blanpain, D. C. Buijs and J. J. M. Lamers,
Medezeggenschap op Europees niveau, De EU-Richtlijn van 22 september 1994
, Deventer 1997, pp. 1 to 46.
(6)
Ibid.
(7)
Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (OJ 1994 L 254, p. 64), as amended by Directive 97/74/EC of 15 December 1997 (OJ 1998 L 10, p. 22) and Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ 2002 L 80, p. 29).
(8)
Seventh recital in the preamble.
(9)
Article 39(2) of the EC Treaty reads:
"Such freedom of movement [for workers] shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment."
(10)
Case C-126/99
Vitari
[2000] ECR I-9425.
(11)
Paragraph 23 of the judgment.
(12)
Cited in footnote 10.
(13)
Cited in footnote 10.
(14)
Cited in footnote 10.
(15)
Cited in footnote 10.
(16)
Article 27 of the Charter of Fundamental Rights of the European Union, which the plaintiffs cite, mentions only a workers' collective right to information and consultation within the undertaking.
(17)
Case 232/84
Commission
vTordeur
[1985] ECR 3223.
(18)
Cited in footnote 10.
(19)
Cited in footnote 17, paragraphs 27 and 28, my italics.
(20)
See point 7 above.