Judgment of the Court (Fourth Chamber) of 13 July 1989. - Albert Alexis and others v Commission of the European Communities. - Officials - Staff members of the European Association for Cooperation (EAC) - Recognition of their status as officials of the Commission with effect from the dae on which they were engaged by the EAC. - Case 286/83.



European Court reports 1989 Page 02445



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1 . Officials - Actions - Right to bring an action - Persons claiming the status of officials or of employees other than local staff

2 . Officials - Status of officials - Conditions for acquisition not met

Summary

1 . It is not only persons who have the status of officials or of employees other than local staff who may bring an action before the Court to contest a decision adversely affecting them, but also those claiming such status .

2 . The status of official or other servant of the Communities cannot be granted to the staff of an international association, governed by the law of a Member State, which cannot be regarded as an administrative unit of the Commission, whatever its relations with that institution .

Parties

In Case 286/83

Albert Alexis and 181 other staff members of the European Association for Cooperation, all represented and assisted by Edmond Lebrun and Marcel Slusny, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse Charlotte,

applicants,

v

Commission of the European Communities, represented by Hendrik van Lier, a member of its Legal Department, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of the Commission' s Legal Department, Centre Wagner, Luxembourg,

defendant,

APPLICATION for recognition of the applicants' status as officials or members of the temporary staff of the Commission,

THE COURT ( Fourth Chamber )

composed of : T Koopmans, President of the Chamber, C . N . Kakouris and M . Díez de Velasco, Judges,

Advocate General : J . Mischo

Registrar : D . Louterman, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 19 April 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 15 June 1989,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 21 December 1983, Albert Alexis and 181 other staff members of the European Association for Cooperation ( hereinafter referred to as "the Association ") who perform the duties of delegates, advisers or attachés of Commission delegations in developing countries or who perform duties of technical assistance or cooperation in such countries brought an action seeking the annulment of the Commission' s decision of 11 March 1983 refusing to establish them as officials with effect from the date on which they were engaged by the Association .

2 At the time the action was brought, the applicants were part of the overseas staff of the Association, which is an international non-profit-making association set up under Belgian law for the purpose of facilitating cooperation between the Community and developing countries . The Association has three categories of staff : headquarters staff, staff recruited by the Association under special contracts and seconded to the Commission, and overseas staff, to which the applicants belong .

3 In order to solve the problems relating to the Association' s staff, the Council adopted, in respect of the first category, Regulation No 3332/82 of 3 December 1982 laying down special transitional measures for the recruitment as officials of the European Communities of 56 members of the staff of the headquarters of the European Association for Cooperation ( Official Journal 1982, L 352, p . 5 ). The staff members of the second category, that is to say those under special contracts, received simultaneously letters of dismissal from the Association and offers from the Commission to engage them as members of its temporary staff .

4 With regard to the third category, the overseas staff, the Council adopted Council Regulation No 3018/87 of 5 October 1987 introducing special transitional measures for the recruitment of overseas staff of the European Association for Cooperation as officials of the European Communities ( Official Journal 1987, L 286, p . 1 ). That regulation states that staff members holding a contract of employment with the European Association for Cooperation on 1 January 1988 may be appointed officials of the Commission of the European Communities and assigned to one of the posts earmarked for that purpose in the Commission' s establishment plan for 1988 and that, by way of derogation from Articles 31 and 32 of the Staff Regulations, they are to be appointed to the category, grade and step whose basic salary corresponds to the basic salary received from the Association . Seniority in grade is to be reckoned from the date of appointment as an official of the Commission .

5 The main purpose of the application is to obtain a declaration that the applicants have been officials, or in the alternative members of the Commission' s temporary staff, since they were engaged in the service of the Association and that, in any event, they are entitled to retain the rights they acquired as staff members of the Association in so far as those rights should prove more advantageous than the rights arising from the application of the Staff Regulations of Officials of the European Communities .

6 In view of the fact that the applicants were appointed as officials of the Commission under Council Regulation No 3018/87, cited above, with effect from 1 January 1988, the dispute concerns only the retroactive effect of their appointments and the retention of the rights they acquired as staff members of the Association .

7 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the submissions and arguments of the parties, which are mentioned hereinafter only in so far as is necessary for the reasoning of the Court .

Admissibility

8 The Commission contends that the Court has no jurisdiction to hear the case inasmuch as the applicants do not have the status of officials or other servants of the Communities .

9 In that regard, it should be pointed out that, as the Court has stated on a number of occasions ( see in particular the judgment in Joined Cases 87 and 130/77, 22/83, and 9 and 10/84 Salerno v Commission and Council (( 1985 )) ECR 2523 ), it is not only persons who have the status of officials or of employees other than local staff who may bring an action before the Court to contest a decision adversely affecting them, but also persons claiming that status .

Substance

10 The applicants' claim is that the Association is a fictitious entity or at least the apparent employer of its staff, the real employer being the Commission . In support of their argument, the applicants point to the relationships of every kind maintained by the Association with the Commission and claim that the situation of the Association' s staff is identical to that of officials or members of the Commission' s temporary staff . Consequently, the applicants claim recognition of their status as officials or other servants of the Commission with effect from their engagement by the Association .

11 It should be remembered that the Court stated in its judgment in Salerno, cited above, that the Association was an international, non-profit-making association governed by Belgian law and could not be regarded as an administrative unit of the Commission . Consequently it is the Association and not the Commission which was the applicants' employer .

12 The applicants claim, in the alternative, that by refusing to recognize them as officials or other servants of the European Communities, the Commission infringed the principle that officials and servants of the European Communities should be treated equally . However, in view of the fact that in the meantime they have been recruited under Regulation No 3018/87, the applicants now contest only the date on which that recruitment took effect, since 32 staff members of the association seconded to Directorate-General VIII and 56 headquarters staff of the Association were established at a much earlier date than the applicants .

13 In that regard, it must be pointed out that although the Court, in its judgments in Case 119/83 Appelbaum v Commission (( 1985 )) ECR 2447 and in Joined Cases 66 to 68 and 136 to 140/83 Hattet and Others v Commission (( 1985 )) ECR 2461, found that there had been an infringement of the principle of equal treatment, at the time of recruitment, as between the staff under special contracts and the headquarters staff of the Association, it nevertheless annulled the Commission' s decisions appointing those applicants only in so far as they established their grades and steps .

14 In its judgment in Joined Cases 314 and 315/86 Szy-Tarisse and Feyaerts v Commission (( 1988 )) ECR 6013, the Court stated that the observations it had made in the judgments cited above with regard to the different treatment received by the special contract staff compared with that received by the headquarters staff related only to the determination of the applicants' grade and step by the decisions appointing them as probationary officials and not to the date from which those decisions took effect .

15 In view of the above considerations, it must be observed that no infringement of the principle of equal treatment can be found in the context of this case .

16 Consequently, the application must be dismissed as unfounded .

Decision on costs

Costs

17 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities .

Operative part

On those grounds,

THE COURT ( Fourth Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .