Opinion of Mr Advocate General erLoren van Themaat delivered on 12 December 1985. - Alan Ainsworth and others v Commission and Council of the European Communities. - EAEC Joint Undertaking - Claim for the status of temporary servant. - Joined cases 271/83, 15, 36, 113, 158, 203/84 and 13/85.



European Court reports 1987 Page 00167



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Introduction

These cases, which are all joined, concern 174 applications lodged by British members of staff of the United Kingdom Atomic Energy Authority ( hereinafter referred to as "the Authority" or "the host organization ") made available to the Joint European Torus ( JET ) Joint Undertaking . All the applications concern in particular the rejection of their request to be appointed as temporary servants of the Community during the lifetime of the JET project .

1.1 Purpose of the JET Joint Undertaking

By Decision No 76/345/Euratom of 25 March 1976, the Council, on the basis of Article 7 of the EAEC Treaty, adopted a research and training programme for the European Atomic Energy Community ( EAEC ) in the field of fusion and plasma physics for a period of five years from 1 January 1976 . The purpose of that programme is "to reach the application stage of controlled thermonuclear fusion" in order to ensure the Community' s energy supplies in the long term .

Since it considered that it was necessary to equip the Community with a large Tokomak-type torus facility, to be called JET ( Joint European Torus ), the Council, by Decision No 78/470 of 30 May 1978 ( Official Journal L*151, p.*8 ), amended the abovementioned research programme . Decision No 78/471, adopted on the same day, conferred responsibility for the implementation of that project on a joint undertaking, the Joint European Torus ( JET ) Joint Undertaking ( hereinafter referred to as "JET "), constituted under the provisions of Chapter V of the second Title of the EAEC Treaty, and the statutes annexed to that decision ( Official Journal L*151, p.*10 ).

Under Article 1 of the Statutes, the seat of the Joint Undertaking is at the establishment of the Authority at Culham, Oxfordshire .

The members of JET are :

( i ) the EAEC;

( ii ) the host organization ( the Authority );

( iii ) the bodies corresponding to the latter in the other Member States of the EAEC;

( iv ) the National Swedish Board for Energy Source Development .

1.2 Composition and arrangements for recruitment of the JET project team ( Article 8 of the Statutes )

Article 8.3 of the Statutes provides that the members of the Joint Undertaking are to make available to it qualified scientific, technical and administrative staff during the entire period in which the JET project is being carried out .

Under Article 8.1 of the Statutes, the project team is composed of two distinct categories of staff :

( a ) Staff coming from the host organization

Article 8.4 of the Statutes provides that : "Staff made available by the host organization shall remain in the employment of the host organization on the terms and conditions of service of that organization and be assigned by the latter to the Joint Undertaking ."

( b ) Staff coming from the members of the Joint Undertaking and other personnel

Article 8.5 of the Statutes provides that : "Unless decided otherwise in special cases in accordance with the procedures for the assignment and management of staff to be decided by the JET Council, staff made available by the members of the Joint Undertaking other than the host organization as well as other personnel shall be recruited by the Commission for temporary posts in accordance with the 'Conditions of Employment of Other Servants of the European Communities' and assigned by the Commission to the Joint Undertaking ."

1.3 Origin and development of the dispute

The applicants, who are British nationals made available to the Joint Undertaking by the Authority, claim the status of temporary servants of the EAEC .

The JET project, which is to take 12 years ( 1978-90 ), is divided into two phases : the initial, construction phase ( 1978-83 ) and the operational phase, commenced in May 1983 .

It appears from the documents annexed to the applications that the applicants in fact fall into three different groups :

( i ) those who were recruited by the Authority for the purpose of assigning them to the project for the operational phase, that is to say, in 1983;

( ii ) those who had been appointed by the Authority for the purpose of assigning them to the project in the construction phase, that is to say, between 1978 and 1983, and who were reassigned to the project in the operational phase in 1983;

( iii ) those who had previously been employed by the Authority .

By letters sent between July and September 1983 and confirmed between September and November 1983 all the applicants called upon the Director of the Joint Undertaking and the Commission on the basis of the third paragraph of Article 148 of the EAEC Treaty,

( i ) to engage them as temporary servants of the Communities seconded to the JET project team; and

( ii ) to compensate them for all past and future pecuniary and other losses attributable to their non-engagement as temporary servants of the Communities .

In a standard letter of 1 November 1983, the Director of the JET Joint Undertaking informed each applicant that it was not possible to give consideration to their request because "staff from (( the Authority )) remained its employees" pursuant to Article 8 of the Statutes .

Having regard to the general terms of that letter and to the fact that under Article 5.11 of the Supplementary Rules to the Statutes concerning the assignment and management of the staff of the Joint Undertaking, the power to engage staff up to and including level A4 has been delegated to the Director of the Joint Undertaking, the applicants consider that that letter in fact constitutes communication of decisions adopted by the Commission with regard to them .

If, however, the letter of 1 November 1983 is not to be regarded as such a communication, the applicants claim that the Commission has failed to reply to their request .

1.4 Conclusions of the parties

The applicants each claim that the Court should :

1 . Under Article 146 ( 2 ) and 147 ( 1 ) of the EAEC Treaty, review the legality of, and annul, the decision of the Commission notified to each applicant by letter of 1 November 1983(1 ) from the Director of the JET Joint Undertaking, to the extent that that letter constitutes notification of such decision rejecting the applicants' requests in the relevant letters of request;

2 . Further or alternatively, under Article 148 ( 3 ) of the EAEC Treaty, declare that the Commission' s failure to address to the applicants an offer of employment as temporary servants of the European Communities in accordance with the applicants' relevant letters of request constituted an infringement of the EAEC Treaty;

3 . In any event, under Articles 151 and 188 ( 2 ) of the EAEC Treaty and/or Articles 178 and 215/2 of the EEC Treaty :

( a ) declare that Euratom and/or the European Economic Community are liable to compensate the applicants for the loss suffered by reason of the unlawful recruitment procedures adopted and implemented by the Council and Commission respectively;

( b ) order that the parties seek to agree figures of the amount of compensation to be paid and, in default of such agreement, to fix the amount of such compensation and interest to be paid thereon; and/or

( c ) make such further or other order as may be necessary to ensure that the applicants are granted a full and effective remedy for the injury sustained, including, if necessary, an order that the applicants be engaged by the Commission as temporary servants of the European Communities;

4 . Under Article 69 of the Rules of Procedure, order that the costs of these applications be paid by the defendants or one of them in any event;

5 . Under the Statutes of the Court of Justice and/or the Rules of Procedure of the Court of Justice take such further measures and grant such further relief, if any, as may be necessary, just or equitable .

In the event that its objection of inadmissibility is not accepted, the Commission contends that the Court should :

1 . Dismiss the applications;

2 . Order the applicants to pay the costs .

The Council contends that the Court should :

1 . Dismiss the applications as inadmissible in so far as they are directed against the Council and in so far as concerns the claim for compensation;

2 . If the Court decides to consider the substance of the applications, dismiss them as being without foundation;

3 . Order the applicants to pay the costs .

2 . Admissibility

The Commission has put forward various arguments in support of its objection of inadmissibility . The Council endorses them in so far as its decision and liability are concerned .

The Commission first of all questions the Court' s jurisdiction, since, in its view, the letter of 1 November 1983 sent by the Director of the Joint Undertaking cannot be regarded as one of its acts, as required by Article 146 of the EAEC Treaty; it is an act of the Joint Undertaking which, according to Article 49, falls within the jurisdiction of the national courts . In the event, however, that the Court should take the view that it is an act for the purposes of Article 146 of the EAEC Treaty, it submits that the applications are out of time . It argues that the contested decision of 1 November 1983 is merely a confirmation of the decisions adopted by the Director of the Joint Undertaking between 1978 and 1983 to engage the applicants . For the same reason, the submissions relating to the objection of illegality raised with regard to Council Decision No 78/471 and the submissions relating to damages are inadmissible .

In my view, however, the cases are quite admissible .

On the question of jurisdiction, I would merely refer to the Court' s established case-law to the effect that persons who claim the status of servant of the Community, as defined in Article 152 of the EAEC Treaty, may also make applications to the Court ( the most recent case having been decided on 11 July 1985 - Joined Cases 87 and 130/77, 22/83 and 9 and 10/84 Vittorio Salerno and Others v Commission and Council (( 1985 )) ECR 2523 ).

Furthermore, the contested letter of 1 November 1983 should be regarded as the Commission' s act . The applicants sent their request to be engaged by the Commission as temporary servants to the Director and the Commission . Only the Director replied to the applicants in the abovementioned letter . He was empowered to do this on the Commission' s behalf under Sections 5.10 and 5.11 of the Supplementary Rules to the Statutes . That section delegates to him the power to engage temporary staff up to and including level A4 . The letter is therefore in fact to be regarded as originating from the Commission .

The argument that the applications are out of time cannot succeed . The contested decision of 1 November 1983 cannot be regarded as a confirmation of the earlier engagement decision . The applicants were not in fact engaged by the Director but by the host organization pursuant to Article 8 of the Statutes . There can therefore be no question of a confirmation of a previous act, within the meaning of the second paragraph of Article 146 of the EAEC Treaty, as mentioned by the Commission . The objection to the other submissions should be dismissed for that same reason . Besides, the action in damages is an independent procedure with a limitation period of five years ( Article 44 of the Statute of the Court of Justice of the EAEC and Article 43 of the Statute of the Court of Justice of the EEC ).

As regards the plea of illegality raised against Council Decision No 78/471 I would also point out that the action is not barred by virtue of the fact that in the present case it is directed against a general decision instead of against a regulation as referred to in Article 156 of the EAEC Treaty . The Court has interpreted that article widely in order to provide individuals with the possibility of judicial review in the sense that proceedings may also be brought to challenge acts which have a similar effect to a regulation in the formal sense ( Case 92/78 Simmenthal SpA v Commission (( 1979 )) ECR 777, at p.*800 ). This was also acknowledged by the Council' s representative at the hearing .

3 . Substance

3.1 Introduction

The applicants have put forward two submissions in support of their claim for a declaration that the contested decision is void .

First of all they consider that the contested decision is contrary to the Statutes . Article 8 provides that all staff forming the project team are to be recruited by the Commission as temporary servants except for those who, at the time of their selection for a post in the project team, were already employed by the host organization . Staff still not employed by the host organization at the time of their selection belong, according to Article 8.1, to the group "other personnel ". It is expressly provided in Article 8.5 that members of this group are to be engaged as temporary servants .

The applicants' second submission is that the provision in Articles 8.4 and 8.5 to the effect that those persons who were already in the employ of the host organization at the time of their selection and who all possess British nationality are not to be engaged as temporary officials but are to remain in the employment of the host organization is contrary to the general prohibition of discrimination . During the course of the proceedings this submission was widened since the defendants take the view that that provision is limited not only to that category but also covers all those applicants of British nationality who were still not in the employ of the host organization at the time of their selection .

3.2 The applicants' position regarding the breach of the Statutes

First of all I shall set out the arguments of the parties and then come to my first conclusion on this part of the case .

3.3 The applicants' arguments

The applicants' arguments on this part of the case are based in particular on a literal interpretation of the Statutes .

In their view, it is clear from the wording of the Statutes that persons such as those mentioned above who at the time of their selection were still not in the employment of the member, or in this case, the host organization should be placed in the category "other personnel" ( Article 8.1 ). Consequently, they should be engaged as temporary servants ( Article 8.5 ).

In the first place they refer to Article 8.1 which expressly divides staff into two groups, namely those coming from the members of the Joint Undertaking and other personnel . The applicants argue that it is clear from the provisions which follow that the first category comprises staff who were already employed by the member of the Joint Undertaking . Thus Article 8.4 states that staff made available by the host organization shall remain in the employment of that organization . Article 8.8 requires the members who have placed staff at the disposal of the Project to re-employ such staff as soon as their work on the project has been completed .

3.4 The Commission' s defence

The Commission, supported by the Council, has defended the practice laid down in the contested decision of 1 November 1983 whereby all the staff making up the project team come in fact from the members . As is clear from the answers given to the questions asked by the Court, the category "other personnel" therefore has hardly any significance at all in employment policy .

The Commission first emphasizes the important role which the members play in the JET project . It points out in this regard that the JET project forms a stage in the progressive development of the Community' s fusion programme . This is reflected in the second and third recitals in the preamble to Council Decision No 78/471 . The JET project must be a "joint effort" permitting interaction and cooperation between the project and the laboratories associated with the fusion programme . This "joint effort", "interaction" and "cooperation" are reflected in the composition of the Joint Undertaking, the members of which are listed in Article 1.3 of the Statutes, and in the obligation placed on those members to make qualified staff available to the Joint Undertaking in accordance with Article 8.3 of the Statutes and the obligation under Article 8.8 to re-employ such staff as soon as they have finished work on the project . The structure of the JET Joint Undertaking is unique in comparison with the other joint undertakings which have been in existence for much longer . They all concern national undertakings which, because of their Community interest, were only later turned into joint undertakings . Their staff are composed of one nationality .

Owing to the Community character of the JET project it was decided however that this should also be reflected in the composition of the staff . It was decided that JET itself would not have its own staff but that staff would be made available to it by, on the one hand, the host organization and, on the other hand, the Commission where the staff of the members, not being the host organization, are employed .

Both defendants place the utmost importance on the arrangements laid down in Article 8.8 under which staff are to return to the member concerned after completion of their work on the project . Such an arrangement is considered necessary owing to the temporary nature of the project which, according to Article 1 of Council Decision No 78/471, is to last 12 years . In order to prevent social problems at the end of the project re-employment is regarded as fundamental from the outset . Therefore, individual job applications from outside the members have not in general been successful . In a limited number of cases in which they were successful arrangements could subsequently be made for re-employment by a member before the end of the project .

3.5 Assessment of the submission

The applicants' interpretation of the relevant provisions is at first sight attractive and logically correct . The Statutes do indeed appear to envisage, on the one hand, staff already in the employment of the member and, on the other hand, "other personnel" without such an employment relationship . The applicants who therefore still had no employment relationship with the host organization when they submitted their job applications therefore belong in the category "other personnel" and after selection can be engaged by the Commission as temporary servants .

The practice defended by the Commission, with the support of the Council and based on the Supplementary Rules, is not, however, contrary to the letter of the Statutes either . After selection by the Director of the Joint Undertaking the applicants concerned have in fact been offered employment by the host organization . They thus become the personnel of the members . They are then covered by the arrangements laid down in Article 8 for staff coming from the members . The applicants' argument that the employment is only nominal cannot be accepted in my view since the "return ticket" does have real importance .

When resolving this dispute it should be borne in mind that the contested practice was carried out at a stage before the staff concerned were made available to the project . The Statutes are silent on this preliminary stage which is governed by the Supplementary Rules provided for in Article 8.9 which states that the JET Council shall establish the detailed procedures for assignment and management of staff . Those rules confirm the central role of the members and the practice followed in the assignment of staff . Vacancies are initially notified to the members who circulate notices of them within their organization ( Section 5.2 ). After the final selection decision has been taken by the Director of the project, it is notified to the appropriate member ( Section 5.10 ).

The Supplementary Rules contain no provisions regarding "other personnel ". Only "the special cases" referred to in Article 8.5 of the Statutes are further defined in provisions which are not applicable, however, to this case .

In view of what is provided in the Supplementary Rules and the practice based upon them I am of the opinion that the staff concerned are rightly not classified as "other personnel ". In taking that view I would add that the arrangements laid down in the Supplementary Rules concern matters of staffing policy on which the Court may not rule as such . The submission regarding the infringement of the Statutes should, however, in my view, be dismissed on the grounds I have stated .

4 . Breach of the prohibition of discrimination

4.1 Introduction

In dealing with this submission I assume that the rule applied with regard to recruitment is in accordance with the Statutes, as argued hitherto . Again, I shall first set out the arguments of the parties and then reach a conclusion on this part of the case .

4.2 The applicants' arguments regarding the breach of the prohibition of discrimination

The applicants contend that all British candidates must be in the employment of the host organization before they can be made available to the JET project . By virtue of Article 8.4 and 8.5 of the Statutes this means that only British candidates are excluded from engagement as temporary servants of the Commission .

It is clear from the letters from the Personnel Division of the Joint Undertaking, which confirms receipt of the applications or notifies applicants of the selection decision, that the distinction made between the candidates is based on their nationality . It is generally known that the host organization has only British nationals in its employment . In the letters produced to the Court it is stated that "... British candidates who are selected for JET posts either are, or become, members of the UK Atomic Energy Authority ..." and that their "subsequent assignment to JET ... (( is )) governed by the terms and conditions of (( their )) employment with the UKAEA" ( Annexes 11 and 12 to the applications ).

The applicants take the view that the simple fact that they were employed by the Authority at the time of selection cannot justify the difference in treatment between the various members of the project team . That difference conflicts with the Community nature of the project mentioned in Article 8 of the Statutes of the Joint Undertaking .

4.3 The defendants' arguments

The Commission repeats the arguments which it put forward on the previous issue . It emphasizes the part played by the members in the JET project, its temporary nature and the allied necessity of a "return ticket" arrangement for the personnel concerned upon termination of their work .

The Council acknowledges that there is a difference in treatment between two groups of personnel ( UKAEA and EAEC ). This difference is not unlawful, however, since it arises from the difference between the statutes applicable to them . Both groups are therefore in different situations and may not therefore claim equal treatment .

The Council has expressly stated that the aim of the arrangements was to guarantee a balance of nationalities amongst the project staff . Since the Authority' s staff always have British nationality, the Community contingent should consist of all Community nationalities except British .

The Council emphasizes that, because of their special position in the joint effort of all the members of the Joint Undertaking, the EAEC and the Authority act as employers of the staff assigned to the Joint Undertaking, the EAEC as promoter of the undertaking and the Authority as host organization . The Council also points out that, although the JET Joint Undertaking is one of eight joint undertakings in existence at the moment, it is the only one which has staff made available to it by two external employers, the Authority and the EAEC, the other undertakings having their own staff to which the same statutes apply . Article 8 of the Statutes, in which that distinction is adopted, governs only the way in which staff are to be made available to the Joint Undertaking but says nothing about the differences mentioned by the applicants with regard to the nationality of candidates or the fact that they were in the Authority' s employment before their selection .

4.4 Assessment of the submission

In assessing this submission it should be remembered first of all that, as is clear from the third recital in the preamble to Council Decision No 78/471 and Article 8.2 of the Statutes, the JET project was set up as a Community project, unlike the other aforementioned joint undertakings .

Article 8.2 reads as follows :

"The composition of the project team shall strike a reasonable balance between the need to guarantee the Community nature of the project, especially in the case of posts for which qualifications of a certain level are required ( physicists, engineers, administrative staff at an equivalent level ) and the need to give the Director of the project the widest possible authority in the matter of staff selection in the interests of efficient management . In applying this principle account shall also be taken of the interests of the non-Community members of the Joint Undertaking ."

It is clear that staff are treated differently depending on whether they come from the host organization or elsewhere . It also became clear during the proceedings that it may be regarded as widely known that the Authority engages only employees of British nationality . It appears that this is normally the case with the other members as well . This also follows from the Council' s point that the aim of the arrangements was precisely to ensure a balance of nationalities amongst the staff .

The Council' s argument that the difference in treatment of the two groups is not unlawful owing to the difference between the statutes applicable to them is not acceptable . After all, it was the Council which created this difference in treatment in its decision and the statutes annexed thereto . According to the established case-law of the Court, the same situations must be dealt with in the same way and different situations in a different way . However, the difference must reside in objective circumstances in order for unequal treatment to be acceptable . The Council' s argument about the difference in statutes is not sufficient for that purpose .

In my opinion there is nothing to suggest that the fact that members of staff come from the host organization can justify a difference in treatment . Neither the Statutes nor the Supplementary Rules indicate that, when candidates are selected, either at the start of the project or thereafter, a preferential right to employment by JET exists for members of staff coming from the Authority . It is only after the selection has been made by the Director of the project that the difference between the candidates is applied, depending on their origin, as is also clear from the aforementioned letters produced by the applicants . The rules create the impression that in principle the "old" model for the existing joint arrangements has been taken, namely with the very same statutes applying to the existing members of staff of the modified organization and besides them staff from throughout the Community, with the exception of the first group . Such an arrangement is not acceptable in view of the Community nature of the project from the beginning .

I would also remind the Court that when answering its questions at the hearing the Council expressly confirmed its earlier view that the aim of the rules is to ensure a balance of nationalities amongst the members of the project team . However, in my view it is not clear why such a balance cannot be achieved amongst the temporary servants of the Commission . Moreover, both defendants have confirmed that there are no financial reasons underlying the difference in treatment .

In conclusion I consider it established that there is a difference in treatment on grounds of nationality . In my view, no objective reasons which may justify such a fundamental difference in treatment have been adduced . On the contrary, the fact that staff of British nationality and of other nationalities do the same kind of work for the project also requires equal conditions of employment .

The Community nature of the project which has been emphasized means that the fundamental principles laid down in Community law are applicable .

In my view, the arrangements in question, laid down in Articles 8.4 and 8.5 of the Statutes, are therefore contrary to the general prohibition of discrimination on grounds of nationality . The decision based on them should therefore, in my view, be annulled . I have also considered whether that conclusion should be limited to staff who were selected by the Director of the Joint Undertaking or to British staff who were engaged at the same time as staff of other nationalities recruited by the Commission . Since the members of staff recruited by the Commission were also in most cases already employed by a member of JET, I do not, however, consider it possible to limit my conclusion in that way . As in the case of the staff made available by the host organization, they are in fact, according to Article 8.5 of the Statutes, staff made available by the members . They may consist of both "new" and "old" staff . The prohibition of discrimination should then apply to both categories of staff as regards conditions of employment .

5 . The claim for compensation

In view of the position I adopted earlier, only the applicants' claim for compensation still remains to be discussed since the other claims have in fact lost their purpose .

The applicants have requested the Court to order the Community to compensate them for the loss suffered by reason of the unlawful recruitment procedure followed by the Council and the Commission . However, that claim is further defined inasmuch as the Court is requested to order the parties to seek agreement on the amount of compensation to be paid . The applicants in fact take the view that at this stage the amount of compensation cannot be properly determined save that it should cover the difference between the pay received as a member of the Authority' s staff and as a temporary servant of the Commission . Indeed, it is not clear at the moment at what level the applicants should be instated .

The defendants have not discussed the claim for compensation except in connection with the objection of inadmissibility which I have rejected .

In my view, the criteria which the Court applies in granting a claim for compensation are fulfilled . In the present case the breach of the fundamental prohibition of discrimination on grounds of nationality constitutes "a sufficiently serious breach of a superior rule of law for the protection of the individual" within the meaning of the Court' s case-law, inter alia its decision in Case 238/78 Ireks-Arkady v Council and Commission (( 1979 )) ECR 2955 at p.*2972 .

However, I consider that at this stage the only way in which the Court can grant the claim is to order the parties to seek agreement on the amount of compensation to be paid .

6 . Final conclusion

In conclusion I propose that in the present cases the Court should :

( 1 ) Annul the contested decision of 1 November 1983, in which the applicants' request to be engaged as temporary servants of the Community was rejected, for being contrary to the fundamental prohibition of discrimination on grounds of nationality and declare the relevant provisions of the Statutes annexed to Council Decision No 78/471 inapplicable;

( 2 ) Grant the request for compensation according to the difference between the applicants' pay as members of staff of the United Kingdom Atomic Energy Authority and, where so entitled, as temporary servants of the Community;

( 3 ) Direct the parties to seek agreement on the amounts of compensation to be paid and to report thereon to the Court within a period of six months;

( 4 ) In the event that the parties do not agree within that period on the amounts of compensation to be paid, direct them to submit to the Court the exact figures for the compensation which in their view must be paid;

( 5 ) Order the Commission and the Council to pay the costs;

( 6 ) Dismiss the remainder of the applicants' claims .

(*) Translated from the Dutch .

( 1 ) The date of the act adversely affecting the applicants did not appear in the conclusions in Cases 158/84, 203/84 and 13/85 .