61984CJ0232_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 232/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY AND THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE COUR DU TRAVAIL ( LABOUR COURT ), BRUSSELS, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
COMMISSION OF THE EUROPEAN COMMUNITIES,
AND
JEAN-LOUIS TORDEUR AND OTHERS,
Subject of the case
ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, ARTICLE 23 OF THE ABOVEMENTIONED CONVENTION OF 27 SEPTEMBER 1968 AND ARTICLES 12 TO 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES OF 8 APRIL 1965,
Grounds
1 BY JUDGMENT OF 11 SEPTEMBER 1984, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 17 SEPTEMBER 1984, THE COUR DU TRAVAIL ( LABOUR COURT ), BRUSSELS, REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY AND THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS THREE QUESTIONS ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, ARTICLE 23 OF THE ABOVE-MENTIONED CONVENTION OF 27 SEPTEMBER 1968 AND ARTICLES 12 TO 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES OF 8 APRIL 1965 .
2 THOSE QUESTIONS WERE RAISED IN A DISPUTE BETWEEN THE COMMISSION OF THE EUROPEAN COMMUNITIES AND MR TORDEUR . BETWEEN 1 DECEMBER 1976 AND 31 MAY 1978 MR TORDEUR WAS PLACED AT THE COMMISSION ' S DISPOSAL AS A TEMPORARY WORKER BY TWO DIFFERENT TEMPORARY-STAFF AGENCIES WHICH HAD TAKEN PART IN INVITATIONS TO TENDER ORGANIZED BY THE COMMISSION FOR THE RECRUITMENT OF SUCH STAFF .
3 MR TORDEUR BROUGHT AN ACTION AGAINST THE COMMISSION AND THE TWO TEMPORARY-STAFF AGENCIES BEFORE THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), BRUSSELS, IN WHICH HE MAINTAINED THAT THE BELGIAN LAW OF 28 JUNE 1976 PROVISIONALLY REGULATING TEMPORARY EMPLOYMENT, TEMPORARY WORK AND THE PLACING OF WORKERS AT THE DISPOSAL OF EMPLOYERS ( MONITEUR BELGE OF 7 AUGUST 1976, P . 9968 ) WAS APPLICABLE TO HIM .
4 MR TORDEUR APPLIED IN THE FIRST PLACE FOR AN ORDER THAT THE COMMISSION AND THE TEMPORARY-STAFF AGENCIES WERE JOINTLY AND SEVERALLY LIABLE PURSUANT TO ARTICLE 10 OF THE SAID LAW TO PAY HIM THE DIFFERENCE BETWEEN THE CLERK ' S SALARY THAT HE ACTUALLY RECEIVED AND THE SALARY OF AN ADMINISTRATOR IN GRADE A 7 . IN THAT REGARD HE CONTENDED THAT THE DUTIES WHICH HE HAD PERFORMED IN THE SERVICE OF THE COMMISSION WERE NORMALLY THOSE OF AN ADMINISTRATOR AND NOT THOSE OF A CLERK .
5 SECONDLY, MR TORDEUR APPLIED FOR AN ORDER REQUIRING THE COMMISSION AND THE TEMPORARY-STAFF AGENCIES TO PAY HIM COMPENSATION IN LIEU OF NOTICE FOR BREACH OF THE CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION BETWEEN HIM AND THE COMMISSION WHICH CAME INTO BEING UNDER ARTICLE 32 ( 3 ) OF THE AFORESAID LAW .
6 ARTICLE 10, WHICH MR TORDEUR RELIES UPON IN SUPPORT OF HIS FIRST CLAIM, PROVIDES THAT THE REMUNERATION OF A TEMPORARY WORKER MAY NOT BE LOWER THAN THAT TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD BEEN EMPLOYED IN THE SAME CIRCUMSTANCES AS A PERMANENT EMPLOYEE .
7 ARTICLE 32, WHICH IS REFERRED TO IN THE SECOND QUESTION, PROVIDES IN PARAGRAPH 1 THAT A LEGAL OR NATURAL PERSON MAY NOT CARRY ON AN ACTIVITY OUTSIDE THE RULES LAID DOWN IN CHAPTERS I AND II OF THE AFORESAID BELGIAN LAW WHERE THE ACTIVITY CONSISTS IN PLACING WORKERS RECRUITED BY THAT PERSON AT THE DISPOSAL OF THIRD PARTIES WHO USE THOSE WORKERS AND EXERCISE IN RELATION TO THEM ANY PART OF THE AUTHORITY NORMALLY VESTED IN AN EMPLOYER .
8 ARTICLE 32 ( 3 ) IS WORDED AS FOLLOWS :
' WHERE A USER HAS WORK CARRIED OUT BY WORKERS PLACED AT HIS DISPOSAL IN BREACH OF PARAGRAPH 1, THE USER AND THE WORKERS SHALL BE REGARDED AS BOUND BY A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION FROM THE COMMENCEMENT OF THE WORK . '
9 FINALLY, ARTICLE 32 ( 4 ) PROVIDES THAT THE PERSON USING TEMPORARY WORKERS AND THE PERSON WHO PLACES THE WORKERS AT HIS DISPOSAL IN BREACH OF ARTICLE 32 ( 1 ) ARE TO BE JOINTLY AND SEVERALLY LIABLE FOR THE PAYMENT OF SOCIAL CONTRIBUTIONS, REMUNERATION, COMPENSATION AND BENEFITS RESULTING FROM THE CONTRACT REFERRED TO IN ARTICLE 32 ( 3 ).
10 BY INTERLOCUTORY DECISION OF 30 MAY 1983, THE TRIBUNAL DU TRAVAIL, BRUSSELS, DECLARED THAT THE RELATIONSHIP BETWEEN MR TORDEUR, ON THE ONE HAND, AND THE COMMISSION AND THE TWO TEMPORARY-STAFF AGENCIES, ON THE OTHER, WAS GOVERNED BY THE BELGIAN LAW OF 28 JUNE 1976 .
11 THE COMMISSION APPEALED TO THE COUR DU TRAVAIL, BRUSSELS, WHICH STAYED THE PROCEEDINGS AND REFERRED TO THE COURT THE FOLLOWING QUESTIONS FOR A PRELIMINARY RULING :
' ( A ) DOES THE COMMUNITIES '
LIABILITY TOWARDS A TEMPORARY WORKER UNDER THE PROVISIONS OF BELGIAN LAW APPLICABLE TO CONTRACTS ENTERED INTO BETWEEN THE COMMISSION AND TEMPORARY-STAFF AGENCIES FALL WITHIN THE SCOPE OF ITS NON-CONTRACTUAL LIABILITY, AS REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, OR WITHIN THE SCOPE OF SOME OTHER RULE OF COMMUNITY LAW WHICH GIVES THE COURT OF JUSTICE EXCLUSIVE JURISDICTION OVER THE CLAIM BROUGHT AGAINST THE COMMISSION?
( B)IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, DOES ARTICLE 23 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( IF IT IS APPLICABLE IN THIS CASE, A QUESTION WHICH IS ALSO SUBMITTED TO THE COURT OF JUSTICE ) OR ANY OTHER RULE OF COMMUNITY LAW WHICH MAY BE APPLICABLE PERMIT IN THIS CASE AN EXCEPTION TO THE JURISDICTION OF THE COURT OF JUSTICE IN FAVOUR OF THE NATIONAL COURT IN WHICH PROCEEDINGS HAVE ALREADY BEEN COMMENCED?
( C)IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, OR IF THE ANSWER TO THE SECOND QUESTION IS IN THE AFFIRMATIVE, DO ARTICLES 12 TO 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES, SIGNED IN BRUSSELS ON 8 APRIL 1965, OR ANY OTHER RULE OF COMMUNITY LAW WHICH MAY BE APPLICABLE PRECLUDE THE APPLICATION TO THE COMMISSION OF NATIONAL PROVISIONS WHICH, IN THE EVENT OF NON-OBSERVANCE OF CERTAIN RULES, IMPOSE, AS A CIVIL SANCTION, A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION BETWEEN A TEMPORARY WORKER AND THE USER OF HIS SERVICES?
'
12 IN ACCORDANCE WITH ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, WRITTEN OBSERVATIONS WERE SUBMITTED BY MR TORDEUR AND BY THE COMMISSION .
13 BY ORDER OF 13 FEBRUARY 1985, THE COURT ASSIGNED THE CASE TO THE FOURTH CHAMBER .
14 BY ORDER OF 19 MARCH 1985, THE COURT ( FOURTH CHAMBER ) ORDERED ANNEXES NOS 2 AND 3 TO MR TORDEUR ' S OBSERVATIONS AND THE REFERENCES TO THOSE DOCUMENTS IN THE OBSERVATIONS TO BE REMOVED FROM THE FILE ON THE CASE, IN ACCORDANCE WITH A REQUEST TO THAT EFFECT MADE BY THE COMMISSION .
QUESTIONS ( A ) AND ( B )
15 IN QUESTION ( A ), THE COUR DU TRAVAIL ASKS IN SUBSTANCE WHETHER IT HAS JURISDICTION IN THE CASE BEFORE IT OR WHETHER, ON THE CONTRARY, THE CASE IS CONCERNED WITH THE NON-CONTRACTUAL LIABILITY OF THE INSTITUTIONS, WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, IN WHICH EVENT, BY VIRTUE OF ARTICLE 178 OF THE TREATY, THE COURT OF JUSTICE HAS EXCLUSIVE JURISDICTION .
16 IN HIS OBSERVATIONS MR TORDEUR RECALLS THAT, IN THIS CASE, A DIRECT CONTRACTUAL RELATIONSHIP EXISTS, BY VIRTUE OF ARTICLE 32 ( 3 ) OF THE BELGIAN LAW OF 28 JUNE 1976, BETWEEN HIM AND THE COMMISSION, WITH THE RESULT THAT THE CONTRACTUAL LIABILITY OF THE INSTITUTIONS IS INVOLVED AND THE CASE ACCORDINGLY FALLS OUTSIDE THE SCOPE OF THE EXCLUSIVE JURISDICTION CONFERRED ON THE COURT OF JUSTICE BY ARTICLE 178 OF THE EEC TREATY .
17 MR TORDEUR POINTS OUT IN THAT REGARD THAT THE EXISTENCE OF A CONTRACTUAL RELATIONSHIP BETWEEN HIM AND THE COMMISSION IS CONFIRMED BY THE FACT THAT HE WAS RECRUITED BY THE LATTER ON THE BASIS OF A DOCUMENT SIGNED BY A PERSON REPRESENTING THE COMMISSION, BY THE TEMPORARY-STAFF AGENCY AND BY HIMSELF .
18 THE COMMISSION, HOWEVER, MAINTAINS THAT THE BELGIAN LAW OF 28 JUNE 1976 IS BASED ON A FICTION WHEREBY THE SITUATION REFERRED TO IN ARTICLE 32 ( 1 ) IS TREATED AS CREATING A CONTRACT DIRECTLY BETWEEN THE WORKER AND THE USER OF HIS SERVICES . IN THE ABSENCE OF A REAL CONTRACT, A TEMPORARY WORKER CAN BRING AN ACTION AGAINST THE COMMISSION ONLY ON THE BASIS OF THE LATTER ' S NON-CONTRACTUAL LIABILITY . IN AN ACTION OF THAT KIND, THEREFORE, THE COURT OF JUSTICE WOULD HAVE EXCLUSIVE JURISDICTION BY VIRTUE OF ARTICLE 178 OF THE EEC TREATY .
19 IN THAT REGARD, IT SHOULD BE NOTED THAT THE ACTION BROUGHT BY MR TORDEUR BEFORE THE BELGIAN LABOUR COURTS CONSTITUTES AN EXTENSION AT JUDICIAL LEVEL OF THE CONTRACTUAL RELATIONSHIP WHICH EXISTED BETWEEN MR TORDEUR AND THE TWO TEMPORARY-STAFF AGENCIES . SIMILARLY, THE INITIATION OF PROCEEDINGS AGAINST THE COMMISSION IN THIS DISPUTE IS JUSTIFIED BY THE EXISTENCE BETWEEN THE COMMISSION AND THE TWO AGENCIES OF OTHER CONTRACTUAL RELATIONSHIPS WHICH SERVED THE PURPOSE OF PLACING MR TORDEUR AT THE COMMISSION ' S DISPOSAL FOR AN EXTENDED AND UNINTERRUPTED PERIOD .
20 IN THOSE CIRCUMSTANCES, AND WITHOUT THERE BEING ANY NEED TO ESTABLISH WHETHER OR NOT UNDER BELGIAN LAW MR TORDEUR ' S ACTION IS TO BE DESCRIBED AS AN ACTION CONCERNING CONTRACTUAL LIABILITY, IT IS SUFFICIENT TO STATE THAT THE SUBJECT-MATTER OF THE DISPUTE BEFORE THE NATIONAL COURT IN NO WAY COMES WITHIN THE SCOPE OF THE SECOND PARAGRAPH OF ARTICLE 215, AND IT THEREFORE FALLS OUTSIDE THE SCOPE OF THE EXCLUSIVE JURISDICTION CONFERRED ON THE COURT BY ARTICLE 178 .
21 ACCORDINGLY, THE ANSWER TO QUESTION ( A ) MUST BE THAT THE LIABILITY WHICH A COMMUNITY INSTITUTION IS ALLEGED TO INCUR TOWARDS A TEMPORARY WORKER UNDER THE PROVISIONS OF NATIONAL LAW APPLICABLE TO CONTRACTS ENTERED INTO BETWEEN THAT INSTITUTION AND TEMPORARY-STAFF AGENCIES DOES NOT FALL WITHIN THE SCOPE OF THE NON-CONTRACTUAL LIABILITY REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, WITH THE RESULT THAT THE COURT OF JUSTICE DOES NOT HAVE EXCLUSIVE JURISDICTION OVER DISPUTES IN WHICH SUCH LIABILITY IS IN ISSUE .
22 SINCE QUESTION ( B ) WAS SUBMITTED ONLY IN THE EVENT OF AN AFFIRMATIVE ANSWER BY THE COURT TO QUESTION ( A ), IT DOES NOT CALL FOR AN ANSWER .
QUESTION ( C )
23 IN QUESTION ( C ), THE COUR DU TRAVAIL ASKS IN SUBSTANCE WHETHER COMMUNITY LAW PRECLUDES THE APPLICATION OF ARTICLE 32 ( 3 ) OF THE BELGIAN LAW OF 28 JUNE 1976 TO THE COMMUNITY INSTITUTIONS WHEN THEY USE TEMPORARY STAFF, IN SO FAR AS THAT PROVISION IMPOSES AS A CIVIL PENALTY, IN THE EVENT OF NON-COMPLIANCE WITH OTHER PROVISIONS OF THE SAME LAW, A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION BETWEEN THE WORKER AND THE USER OF HIS SERVICES .
24 IN THAT REGARD, IT IS NECESSARY IN THE FIRST PLACE TO RULE OUT THE APPLICATION OF ARTICLES 12 TO 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES OF 8 APRIL 1965 WHICH ARE EXPRESSLY REFERRED TO BY THE COUR DU TRAVAIL IN ITS QUESTION . AS BOTH MR TORDEUR AND THE COMMISSION HAVE RIGHTLY EMPHASIZED, NO QUESTION HAS ARISEN IN THE MAIN DISPUTE CONCERNING THE IMMUNITIES OF OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES, WHICH ARE THE ONLY IMMUNITIES TO WHICH THE AFORESAID PROVISIONS APPLY .
25 HOWEVER, THE COMMISSION HAS EXPRESSED THE VIEW THAT A PROVISION SUCH AS THAT REFERRED TO BY THE COUR DU TRAVAIL IS INCOMPATIBLE WITH OTHER PROVISIONS CONCERNING OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES . IN RESPONSE TO A REQUEST MADE BY THE COURT AT THE HEARING TO STATE WHICH PROVISIONS, IN THE COMMISSION ' S VIEW, PRECLUDE THE APPLICATION TO THE COMMUNITY INSTITUTIONS OF ARTICLE 32 ( 3 ) OF THE BELGIAN LAW OF 28 JUNE 1976, THE COMMISSION EXPLAINED THAT TO PROVIDE, AS A PENALTY FOR NON-COMPLIANCE WITH THE PROVISIONS OF THAT LAW, FOR A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION TO COME INTO EXISTENCE BETWEEN THE TEMPORARY WORKER AND THE INSTITUTION USING HIS SERVICES WOULD INFRINGE THE EXCLUSIVE POWERS OF THE APPOINTING AUTHORITY WITH REGARD TO THE RECRUITMENT OF STAFF .
26 IN THAT REGARD, IT SHOULD BE NOTED THAT ARTICLE 6 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES PROVIDES THAT EACH INSTITUTION IS TO DETERMINE WHO IS AUTHORIZED TO ENGAGE SERVANTS UNDER CONTRACT, WHETHER THEY BE TEMPORARY STAFF, AUXILIARY STAFF, LOCAL STAFF OR EVEN SPECIAL ADVISERS .
27 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 .
28 IN THE LIGHT OF THE AFORESAID CONSIDERATIONS, AND IN ACCORDANCE WITH THE RULING GIVEN BY THE COURT IN ITS JUDGMENT OF 11 MARCH 1975 IN CASE 65/74 ( PORRINI V EAEC AND COMONT ( 1975 ) ECR 319 ), IT 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 .
29 THE ANSWER TO QUESTION ( C ) MUST THEREFORE BE THAT ARTICLE 6 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES PRECLUDES THE APPLICATION TO THE COMMUNITY INSTITUTIONS OF PROVISIONS OF NATIONAL LAW WHICH, IN THE EVENT OF NON-COMPLIANCE WITH CERTAIN NATIONAL RULES RELATING TO TEMPORARY WORK, CREATE A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION BETWEEN THE TEMPORARY WORKER AND THE USER OF HIS SERVICES .
Decision on costs
COSTS
30 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER ),
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE COUR DU TRAVAIL, BRUSSELS, BY JUDGMENT OF 11 SEPTEMBER 1984, HEREBY RULES :
( 1 ) THE LIABILITY WHICH A COMMUNITY INSTITUTION IS ALLEGED TO INCUR TOWARDS A TEMPORARY WORKER UNDER THE PROVISIONS OF NATIONAL LAW APPLICABLE TO CONTRACTS ENTERED INTO BETWEEN THAT INSTITUTION AND TEMPORARY-STAFF AGENCIES DOES NOT FALL WITHIN THE SCOPE OF THE NON-CONTRACTUAL LIABILITY REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, WITH THE RESULT THAT THE COURT OF JUSTICE DOES NOT HAVE EXCLUSIVE JURISDICTION OVER DISPUTES IN WHICH SUCH LIABILITY IS IN ISSUE .
( 2)ARTICLE 6 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES PRECLUDES THE APPLICATION TO THE COMMUNITY INSTITUTIONS OF PROVISIONS OF NATIONAL LAW WHICH, IN THE EVENT OF NON-COMPLIANCE WITH CERTAIN NATIONAL RULES RELATING TO TEMPORARY WORK, CREATE A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION BETWEEN THE TEMPORARY WORKER AND THE USER OF HIS SERVICES .