61975CJ0110_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 110/75
JOHN MILLS, RESIDING AT 43 AVENUE DU BOIS, LUXEMBOURG, REPRESENTED BY CYR CAMBIER, ADVOCATE AT THE COUR D ' APPEL, BRUSSELS, 22 RUE J.B . MEUNIER, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, ADVOCATE, 18A RUE DES GLACIS,
APPLICANT,
V EUROPEAN INVESTMENT BANK, REPRESENTED BY THE DIRECTOR OF ITS DIRECTORATE FOR LEGAL AFFAIRS, J . NICOLAAS VAN DEN HOUTEN, ACTING AS AGENT, HAVING BEEN APPOINTED FOR THAT PURPOSE BY THE PRESIDENT OF THE EUROPEAN INVESTMENT BANK, AND ASSISTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION, CONTAINED IN THE LETTER OF 29 JULY 1975, TO TERMINATE THE EMPLOYMENT OF THE APPLICANT AT THE EUROPEAN INVESTMENT BANK,
Grounds
1 BY AN APPLICATION OF 17 OCTOBER 1975 THE APPLICANT REQUESTED FIRST THE ANNULMENT OF THE MEASURE CONTAINED IN A LETTER DATED 29 JULY 1975 AND RECEIVED ON 30 JULY 1975 FROM THE EUROPEAN INVESTMENT BANK TERMINATING HIS EMPLOYMENT AS A TRANSLATOR AS FROM 31 OCTOBER AND SECONDLY HIS REINSTATEMENT IN HIS POST .
2 AS AN ALTERNATIVE HE REQUESTS THAT THE DEFENDANT BE ORDERED TO PAY IN ADDITION TO THE COMPENSATORY PAYMENTS FOR WHICH PROVISION IS MADE BY ARTICLE 16 OF THE STAFF REGULATIONS OF THE BANK COMPENSATION AMOUNTING TO BF 3 081 020 FOR WRONGFUL TERMINATION OF HIS CONTRACT .
3 IN VIEW OF THE INITIAL QUESTIONS WITH REGARD TO THE JURISDICTION OF THE COURT AND THE ADMISSIBILITY OF THE MAIN CLAIM THE FIRST CHAMBER OF THE COURT, BEING THE APPROPRIATE CHAMBER TO HEAR THE APPLICATION, BY AN ORDER OF 19 FEBRUARY 1976 REFERRED THE MATTER TO THE FULL COURT .
4 IT IS THUS NECESSARY FIRST TO CONSIDER THE JURISDICTION OF THE COURT AND THEN THE ADMISSIBILITY OF THE APPLICATION FOR ANNULMENT .
THE JURISDICTION OF THE COURT
5 ACCORDING TO ARTICLE 179 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY : ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT ' .
6 IT IS ACCORDINGLY NECESSARY TO ASCERTAIN WHETHER THE DEFENDANT MUST FOR THE PURPOSES OF THIS ARTICLE BE CONSIDERED AS FORMING PART OF THE COMMUNITY .
7 TITLE IV OF PART THREE OF THE TREATY ON THE POLICY OF THE COMMUNITY IS DEVOTED TO THE EUROPEAN INVESTMENT BANK .
8 ARTICLE 129 THEREOF PROVIDES : ' A EUROPEAN INVESTMENT BANK IS HEREBY ESTABLISHED ; IT SHALL HAVE LEGAL PERSONALITY ' .
9 THE STATUTE OF THE BANK FORMS THE SUBJECT-MATTER OF A PROTOCOL ANNEXED TO THE TREATY .
10 ACCORDING TO ARTICLE 13 ( 7 ) OF THAT STATUTE : ' THE OFFICIALS AND OTHER EMPLOYEES OF THE BANK SHALL BE UNDER THE AUTHORITY OF THE PRESIDENT . THEY SHALL BE ENGAGED AND DISCHARGED BY HIM ' .
11 ARTICLE 21 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN ECONOMIC COMMUNITY PROVIDED THAT IT SHOULD ALSO APPLY TO THE BANK, TO THE MEMBERS OF ITS ORGANS AND TO ITS STAFF .
12 THAT PROTOCOL WAS REPLACED BY THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES OF WHICH ARTICLE 22 IS IDENTICAL TO THE PROVISION CITED .
13 THE STAFF OF THE BANK ARE THEREBY PLACED IN A SPECIAL LEGAL SITUATION IDENTICAL TO THAT OF THE STAFF OF THE INSTITUTIONS OF THE COMMUNITY .
14 IT MUST THUS BE CONCLUDED THAT BY THE WORDS ' ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS '
ARTICLE 179 IS NOT RESTRICTED EXCLUSIVELY TO THE INSTITUTIONS OF THE COMMUNITY AND THEIR STAFF BUT ALSO INCLUDES THE BANK AS A COMMUNITY INSTITUTION ESTABLISHED AND WITH A LEGAL PERSONALITY CONFERRED BY THE TREATY .
15 THIS CONCLUSION IS NOT INVALIDATED BY THE FACT THAT ARTICLE 180 OF THE TREATY CONTAINS A SPECIAL PROVISION RELATING TO CERTAIN DISPUTES OF THE BANK .
16 THIS PROVISION MERELY CONFERS UPON THE BOARD OF DIRECTORS OF THE BANK POWERS ANALOGOUS TO THOSE CONFERRED UPON THE COMMISSION BY ARTICLE 169 AND RENDERS MEASURES ADOPTED BY THE BOARD OF GOVERNORS AND THOSE ADOPTED BY THE BOARD OF DIRECTORS SUBJECT TO THE SAME JURISDICTION OF THE COURT OF JUSTICE AS THAT CONFERRED BY ARTICLE 173 WITH REGARD TO THE MEASURES OF THE COUNCIL AND OF THE COMMISSION .
17 THIS COMPLEMENTARY NATURE OF ARTICLE 180 THUS CONFIRMS THE CONCLUSION THAT WHEN IN ARTICLE 179 MENTION IS MADE OF THE COMMUNITY THIS DOES NOT EXCLUDE THE BANK .
18 UNDER THIS ARTICLE THE COURT THUS HAS JURISDICTION IN ANY DISPUTE BETWEEN THE BANK AND ITS SERVANTS .
THE ADMISSIBILITY OF THE CONCLUSIONS
19 ARTICLE 13 OF THE STAFF REGULATIONS OF THE BANK PROVIDES : ' RELATIONS BETWEEN THE BANK AND THE MEMBERS OF ITS STAFF SHALL, IN PRINCIPLE, BE GOVERNED BY INDIVIDUAL CONTRACTS IN CONJUNCTION WITH THESE STAFF REGULATIONS . THE STAFF REGULATIONS SHALL BE AN INTEGRAL PART OF THESE CONTRACTS . '
20 ARTICLE 15 PROVIDES : ' INDIVIDUAL CONTRACTS BETWEEN THE BANK AND THE MEMBERS OF ITS STAFF SHALL TAKE THE FORM OF LETTERS OF APPOINTMENT . STAFF ENGAGED BY THE BANK SHALL COUNTERSIGN THE LETTER OF APPOINTMENT AND A COPY OF THESE STAFF REGULATIONS . '
' THE LETTER OF APPOINTMENT SHALL SPECIFY REMUNERATION, LENGTH OF CONTRACT AND OTHER TERMS OF EMPLOYMENT . '
21 THE PROVISIONS OF ARTICLE 16 WHICH ARE RELEVANT TO THE PRESENT CASE PROVIDE : ' CONTRACTS FOR AN INDEFINITE PERIOD MAY BE TERMINATED BY DUE NOTICE GIVEN BY ONE PARTY TO THE OTHER ', THE CONDITIONS AND LENGTH OF THE THE PERIOD OF NOTICE BEING LAID DOWN GENERALLY IN THE SUCCEEDING ARTICLES OF THE REGULATIONS .
22 THE SYSTEM ADOPTED FOR THE RELATIONS BETWEEN THE BANK AND ITS EMPLOYEES IS THUS CONTRACTUAL AND IS ACCORDINGLY FOUNDED ON THE PRINCIPLE THAT INDIVIDUAL CONTRACTS CONCLUDED BETWEEN THE BANK AND EACH OF ITS EMPLOYEES CONSTITUTE THE OUTCOME OF AN AGREEMENT RESTING ON MUTUAL CONSENT .
23 IT FOLLOWS FROM THIS THAT THE CONTRACT MAY BE REPUDIATED AND TERMINATED BY EITHER OF THE PARTIES ON THE CONDITIONS LAID DOWN BOTH IN THE REGULATIONS AND IN THE CONTRACT ITSELF .
24 IF THE CONTRACT IS TERMINATED CONTRARY TO THE PROVISIONS OF THE INDIVIDUAL CONTRACT OR OF THE REGULATIONS WHICH ARE DEEMED TO BE AN INTEGRAL PART THEREOF THE PARTY HAVING ILLEGALLY TERMINATED THE CONTRACT MUST ACCORDINGLY BE ORDERED TO COMPENSATE THE OTHER PARTY FOR THE MATERIAL AND NON-MATERIAL DAMAGE OCCASIONED TO THE LATTER BY SUCH ILLEGALITY .
25 NEVERTHELESS ALTHOUGH THE CONTINUATION OF THE CONTRACT DEPENDS ABOVE ALL ON THE MUTUAL CONSENT OF THE PARTIES WHICH CONSTITUTES THE BASIC CONDITION FOR THE EXISTENCE OF THE CONTRACT, THIS DOES NOT PREVENT BOTH THE PROVISIONS OF THE CONTRACT AND THE GENERAL PRINCIPLES OF THE LAW OF MASTER AND SERVANT, TO WHICH THE LAST ARTICLE OF THE STAFF REGULATIONS OF THE BANK REFERS, FROM IMPOSING LIMITS TO THIS INTENTION OF THE PARTIES .
26 A TERMINATION OF A CONTRACT WHICH EXCEEDS THOSE LIMITS MAY BE VOID AND IT WILL BE FOR THE COURT HAVING JURISDICTION, IN THIS CASE THE COURT OF JUSTICE, TO MAKE A DECLARATION TO THAT EFFECT .
27 IN PARTICULAR, TERMINATION OF A CONTRACT TAKING THE FORM OF ' SUMMARY DISMISSAL FOR GRAVE MISCONDUCT ', THE PENALTY PRESCRIBED BY ARTICLE 38 OF THE STAFF REGULATIONS OF THE BANK, MIGHT BE DECLARED VOID IF THE COURT FOUND THAT SUCH MISCONDUCT HAD NOT OCCURRED .
28 IT WILL BE A MATTER FOR THE CHAMBER HAVING JURISDICTION TO VERIFY WHETHER, AS THE APPLICANT HAS ALLEGED, TERMINATION OF HIS CONTRACT CONSTITUTES A DISGUISED DISCIPLINARY MEASURE CONTRARY TO THE PROVISIONS OF THE STAFF REGULATIONS .
29 IN THOSE CIRCUMSTANCES THE APPLICATION FOR THE ANNULMENT OF THE TERMINATION OF THE CONTRACT, UNDERSTOOD AS AN APPLICATION FOR A DECLARATION OF NULLITY, CANNOT THEREFORE BE DECLARED INADMISSIBLE .
SUBSTANCE OF THE CASE
30 THE FIRST CHAMBER REFERRED THE MATTER TO THE FULL COURT IN ORDER THAT THE TWO QUESTIONS CONSIDERED ABOVE MIGHT BE DECIDED .
31 SINCE THE COURT HAS SETTLED THOSE QUESTIONS THE CASE MUST THUS BE REMITTED TO THE FIRST CHAMBER IN ORDER THAT IT MAY CONSIDER THE SUBSTANCE OF THE CASE AND ARRIVE AT A DECISION THEREON .
Decision on costs
COSTS
32 THE COSTS MUST BE RESERVED .
Operative part
ON THOSE GROUNDS,
THE COURT,
BEFORE A DECISION IS ARRIVED AT ON THE SUBSTANCE OF THE APPLICATION, HEREBY DECLARES :
1 . THE COURT HAS JURISDICTION IN ANY DISPUTE BETWEEN THE EUROPEAN INVESTMENT BANK AND ITS EMPLOYEES ;
2 . THE OBJECTION OF INADMISSIBILITY IS DISMISSED ;
3 . THE CASE IS REMITTED TO THE FIRST CHAMBER ;
4 . THE COSTS ARE RESERVED .