Opinion of Mr Advocate General erLoren van Themaat delivered on 16 September 1986. - 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

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Mr President,

Members of the Court,

Joined Cases 271/83, 15, 36, 113, 158, 203/84 and 13/85 concern applications lodged by 174 members of staff of the United Kingdom Atomic Energy Authority ( hereinafter referred to as "the UKAEA" or "the host organization ") made available to the Joint European Torus ( JET ) Joint Undertaking created by Council Decision No 78/471/Euratom of 30 May 1978 ( Official Journal L*151 of 7 June 1978, p.*10 ).

These applications were heard for the first time before the Third Chamber and Mr Advocate General VerLoren van Themaat delivered his Opinion before that Chamber on 12 December 1985 .

The cases were then referred to the full Court, pursuant to Article 95 ( 4 ) of the Rules of Procedure, and a fresh hearing was held before the Court on 19 June 1986 .

During that hearing new aspects emerged on certain points necessitating an additional Opinion .

Rather than submit the Opinion of Mr Advocate General VerLoren van Themaat and an additional Opinion to the Court, I considered it preferable, in the interests of clarity, to submit a single Opinion incorporating the old and new aspects .

The text of this Opinion is therefore partly based on the Opinion of my distinguished predecessor . Although submitted under my responsibility alone, the Opinion is, as it were, a collective work .

Before examining the various applications before the Court, let me briefly explain once again the criteria on the basis of which the JET project team was recruited .

Under Article 8.3 of the Statutes of the Joint Undertaking, which are appended to the Decision of 30 May 1978, the members of the Joint Undertaking(1 ) make available to it qualified scientific, technical and administrative staff during the entire period in which the JET project is being carried out .

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 other 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 ."

By letters sent between July and September 1983 and confirmed between September and November 1983 the applicants in the present cases 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 and/or Article 90 ( 1 ) of the Staff Regulations of Officials of the European Communities :

( 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 dated 1 November 1983, the Director of the JET Joint Undertaking informed each applicant that he was unable to meet their request because "staff from the UKAEA remain its employees" in accordance with Article 8 of the Statutes .

The applicants therefore lodged the present applications in which they ask the Court :

( i ) to annul, on the basis of the second paragraph of Article 146 of the EAEC Treaty, the decision of 1 November 1983;

( ii ) alternatively, to declare that the Commission has failed to act in not responding to the applicants' requests;

( iii ) order the Community to compensate the applicants for the losses suffered by reason of the unlawful recruitment procedures adopted by the Council and implemented by the Commission .

I will examine in turn

( i ) the admissibility of the action;

( ii ) the question of the breach of the Statutes of the JET Joint Undertaking;

( iii ) the question of the validity of those Statutes;

( iv ) the claim for damages .

1 . Admissibility

The Commission has raised an objection of inadmissibility based on various arguments . The Council endorses those arguments in so far as its decision is called in issue and the question of its liability is raised .

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 an act of the Commission, as required by Article 146 of the EAEC Treaty; it is, according to the Commission, an act of the Joint Undertaking which, according to Article 49 of the EAEC Treaty, 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, the Commission submits that the application is out of time . It takes the view that the contested decision of 1 November 1983 is merely a confirmation of the decisions to engage the applicants adopted by the Director of the Joint Undertaking between 1978 and 1983 . In the Commission' s view, the inadmissibility of the application for the annulment of that decision extends to the other claims .

In my view, however, those arguments cannot be accepted .

First of all, the contested letter of 1 November 1983 must be regarded as the Commission' s act . The applicants sent their request to be engaged as temporary servants of the Commission to the Director and the Commission . Only the Director replied to them in the abovementioned letter . He was empowered to do so on the Commission' s behalf under Sections 5.10 and 5.11 of the Supplementary Rules to the Statutes concerning the assignment and management of the staff of the Joint Undertaking . Those provisions delegate to him the power to engage staff up to and including grade A4 . The letter must therefore be regarded as originating from the Commission .

Secondly, the argument that the application was 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 . Consequently, there can 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 maintained by the Commission . I would also point out that the action for damages is a separate remedy to which a limitation period of five years applies ( 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 observe that the fact that it concerns a general decision and not a regulation does not prevent it from being entertained . The Court has interpreted Article 184 of the EEC Treaty or Article 156 of the EAEC Treaty widely in order to provide individuals with the possibility of judicial review in so far as such a plea may also be raised against acts whose effects are similar to those produced by acts taking the form of a regulation ( Case 92/78 Simmenthal SpA v Commission (( 1979 )) ECR 777, at p.*800 ). This was also confirmed by the Council' s representative at the hearing .

On the other hand, the question arises whether the present actions, in so far as they are directed against the Commission, are admissible inasmuch as they are based on the second paragraph of Article 146, the third paragraph of Article 148 and Articles 151 and 188 of the EAEC Treaty . They are in fact directed against a decision adopted by the appointing authority ( the Director of the JET Joint Undertaking acting on the Commission' s behalf ) refusing to engage the applicants as temporary servants .

Although the Court has held that actions may be brought by officals against regulations of the Council on the basis of Article 173 of the EEC Treaty or Article 146 of the EAEC Treaty, to my knowledge there is only one occasion on which it has held an action brought on the basis of one of those articles against a decision of the appointing authority to be admissible .

The decision in question was an order of the President of the Court of 20 October 1959 made on an application for interim measures in Joined Cases 43, 44 and 45/59, Lachmueller, Fiddelaar and Peuvrier v Commission (( 1960 )) ECR 489 .

The applicants had brought actions against Commission decisions to dispense with their services and asked the Court to suspend the operation of the contested decisions .

The Commission had raised the question whether the Court had jurisdiction to give judgment on disputes between the Community and its servants when the Staff Regulations mentioned in Article 179 of the EEC Treaty had not yet been laid down .

The President decided that this question was one of public policy and held :

"Unlike the provisions contained in the ECSC Treaty, Article 173 of the EEC Treaty, which makes provision for applications for annulment, is drafted in such a way that it also applies to officials and gives them the right to bring actions against decisions concerning them .

In these circumstances, Article 179 cannot be interpreted otherwise than as empowering the authors of the Staff Regulations to restrict or extend the limits and conditions generally laid down for application before a court, such as, for example, setting time-limits within which applications must be brought, allowing, in specified cases, applications involving the exercise of the unlimited jurisdiction of the Court, etc ."

In that case the President of the Court clearly wished to avoid a denial of justice . Since then, the Court has held, with regard to Regulation No 2530/72 of the Council, introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States and for the termination of service of officials of those Communities, that

"Although Regulation No 2530/72 does not officially form part of the Staff Regulations of Officials, it is nevertheless concerned with regulating a specific aspect of the relationship, under the Staff Regulations, between the Community institutions and certain of their officials . Consequently, the means of redress available to those concerned in the event of a dispute concerning the application of the regulation are those provided for by the Staff Regulations, which include the lodging of an official complaint as a condition precedent to any application to the Court" ( judgment of 17 February 1977 in Case 48/76 Reinarz v Commission and Council (( 1977 )) ECR 291 at pp.*297 and 298 ).

As in a previous judgment ( of 22 October 1975 in Case 9/75 Meyer-Burckhardt v Commission (( 1975 )) ECR 1171 ), the Court stated with regard to actions in damages :

"A dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in the relationship of employment between the person concerned and the institution, under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and lies outside the sphere of application of Articles 178 and 215 of the Treaty ."

In the Meyer-Burckhardt judgment the Court emphasized in particular that "by submitting a request and a complaint the applicant (( had )) himself followed the procedure outlined in Articles 90 and 91" ( paragraph 8 ).

Let us remember that in the present case the applicants are seeking, amongst other things, an award of damages .

In the Reinarz case Mr Advocate General Capotorti stated that "any dispute which is begun by a person who relies upon his status as a servant or former servant of the Community and which raises a problem to be resolved under the conditions applicable to servants of the Community must follow exclusively the procedure laid down in Article 179 and in Articles 91 and 92 of the Staff Regulations not only when the application is for the annulment of a measure but also when compensation for damage is claimed".(2 )

In his Opinion in the Curtis case(3 ) Mr Advocate General Capotorti stated :

"The decisions of the Court of Justice have always construed that provision ( Article 179 ) as meaning that the remedies which it grants to officials in their relations with the administration are of a special and exclusive nature; that is to say, officials have only the remedies laid down by the article in question and by the provisions adopted pursuant to that article, and therefore they may not rely, as against the administration, on the other forms of protection which the Treaty generally grants to individuals . In this regard it should be sufficient to cite the judgment of 17 February 1977 in Case 48/76 Reinarz (( 1977 )) ECR 291 ." ( my emphasis ).

Although it is permissible under the Staff Regulations to make a request to the administration and, if it is rejected, to have recourse to the Court, that procedure does not appear to be available under Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty since in Maag4 the Court held that : "the applicant cannot unilaterally create an exception to the division of powers between the Court of Justice and the national courts and tribunals by causing the Commission to reject his request and subsequently describing that rejection as a decision within the meaning of Article 173 ".

One is therefore tempted to conclude that that avenue is also closed to an official or other servant or anyone claiming the status of official or other servant who would wish to use it in order to circumvent the conditions governing access to one of the means of redress before the Court.(5 )

Finally, it is to be noted that the remedy provided in Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty is available only against acts of the Council and the Commission ( and, according to the most recent case-law, in certain special circumstances, against acts of the Parliament ).

In the De Lacroix case,(6 ) which concerned an action against the administration of the Court of Justice brought by a person applying to become an official, the Court held that : "in so far as it is based on Article 173 of the Treaty, the application is inadmissible since that provision confers no right to institute proceedings for annulment of the acts of institutions other than the Council or the Commission ".

By allowing officials to avail themselves alternatively of the remedies under Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty, on the one hand, or under Article 179 of the EEC Treaty and Article 152 of the EAEC Treaty, on the other, the Court would therefore create inequality between officials of the Council and the Commission and officials of other institutions and bodies .

For all those reasons and in order to make it clear, for the future, that officials may not found their actions against a decision of the appointing authority on Articles 173, 175, 178 and 215 of the EEC Treaty or Articles 146, 148, 151 and 188 of the EAEC Treaty, I propose that the Court should declare the applications directed against the Commission in Cases 271/83, 15, 36, 113, 158, 203/84 and 13/85 ( hereinafter referred to as "Ainsworth 1 ") inadmissible in so far as they are based on the latter articles .

Moreover, as the applicants explain in the footnote on page 5 of their applications, they themselves had doubts about their admissibility and therefore, as a precaution, also lodged applications based on Article 152 of the EAEC Treaty and Article 91 of the Staff Regulations .

Those applications were lodged in Cases 159 and 267/84 and 12/85 ( hereinafter referred to as "Ainsworth 2 ") in which the same applicants, except the 15 applicants in Case 13/85, submit the same claims and refer to the same arguments .

It is to be noted that, even in their first requests, sent to the Director of the JET Joint Undertaking and the rejection of which is the basis of the Ainsworth 1 cases, the applicants relied on Article 90 ( 1 ) of the Staff Regulations in addition to Article 148 of the EAEC Treaty ( see Annex I B to the application in the Ainsworth 1 cases ). Subsequently, they also lodged complaints ( later rejected ) under Article 90 ( 2 ) but we learned this only from the documents in the Ainsworth 2 cases .

The question arises whether, despite that last circumstance, the Court could, for the sake of procedural economy, simply examine the Ainsworth 1 cases on the basis of Article 91 in so far as they are directed against the Commission . That solution is also worth considering for another reason . The question of admissibility is in fact different as regards the actions for damages directed against the Council .

The applicants do not claim the status of temporary servants of the Council and Council Decision No 78/471, which, in their view, is prejudicial to them, is not a decision of the appointing authority which is open to challenge on the basis of the provisions of the Staff Regulations .

The claims for damages directed against the Council are therefore rightly based on Articles 151 and 188 of the EAEC Treaty .

Owing to the independent nature of the action for damages, confirmed in a consistent line of decisions ( the most recent being the judgment of 26 February 1986 in Case 175/84 Krohn v Commission; see paragraphs 26 and 32 of the decision ), the admissibility of those claims must be judged by reference to the specific conditions which must be met in order for such an action to be admissible and which, in my view, are met in this case .

To sum up, then, I therefore propose that the actions for damages directed against the Council should be treated as admissible and that the actions directed against the Commission in the Ainsworth 1 cases should be examined on the basis of Article 91 of the Staff Regulations because the applicants fulfil the conditions laid down in that regard .

If the Court decides that the course I suggest cannot be taken, I propose it should :

( i ) refer Cases 159 and 267/84 and 12/85 ( Ainsworth 2 ) to the full Court;

( ii ) ask the parties whether they are prepared to forgo the oral procedure in those cases;

( iii ) give me the opportunity to submit a brief Opinion on them;

( iv ) join the two groups of cases for the purposes of the judgment and declare the Ainsworth 2 actions admissible in so far as they are directed against the Council .

If that is not possible, there is no other alternative but to declare the present applications inadmissible in so far as they are directed against the Commission, to examine the substance of the applications in so far as they are directed against the Council and later to hear oral argument in Cases 159 and 267/84 and 12/85 .

I can now examine the substance of the case .

2 . Substance

The applicants base their action on two separate submissions :

( i ) Breach of the Statutes of the JET Joint Undertaking;

( ii ) The illegality of those Statutes .

2.1 The question of the breach of the Statutes

The question is whether all the British candidates who at the time of their selection by the Director of the JET project were not employed by the UKAEA had first to be recruited by the UKAEA and then be assigned to the project, or whether they had to be engaged by the Commission as temporary servants of the Communities in the category "other personnel ".

The applicants obviously support the second proposition which at first sight seems attractive and logical .

However, the Commission' s interpretation, supported on this point by the Council and based on the Supplementary Rules concerning the assignment and management of staff adopted by the JET Council pursuant to Article 8.9 of the Statutes, does not do violence to the text of the Statutes either . After being selected by the Director of the Joint Undertaking, the applicants concerned were offered a contract of employment by the host organization . They therefore joined the staff of that organization . They were then governed by Article 8.4, concerning staff coming from that member . The applicants' argument that the employment relationship is only nominal cannot, in my view, be accepted since the related re-employment arrangement is undeniably of essential importance .

In resolving this dispute it must be borne in mind that the practice in question occurs at a stage before staff are made available to the project . The Statutes say nothing about that preliminary stage . That stage is governed by the Supplementary Rules which confirm the central role of the members and the practice followed upon the assignment of staff . Under the Supplementary Rules, vacancy notices are initially notified to the members which circulate them within their own organization ( Section 5.2 of the Supplementary Rules ).

The Supplementary Rules contain no provision regarding "other personnel ". Only the "special cases" referred to in Article 8.5 of the Statutes are subject to more detailed rules . However, those rules are not applicable in this case .

Having regard to the Supplementary Rules and the practice based upon them I consider that the persons concerned were rightly not classified as "other personnel ".

The Commission cannot be forbidden from using that possibility in order to ensure that all persons made available to the JET project have a guarantee of re-employment from a member organization for the time when the project comes to an end .

The practice in question could not therefore have constituted a breach of the Statutes .

However, this question has another aspect on which new light was shed during the hearing on 16 June 1986 .

During those new oral proceedings, the Commission acknowledged that the Director of the JET project had always assumed that only the United Kingdom Atomic Energy Authority was prepared to engage candidates of British nationality selected for posts under the JET project .

That is why the letters from the personnel service of the Joint Undertaking acknowledging receipt of applications and notifying applicants of the Selection Board' s decision, specimens of which are among the documents before the Court, 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" was "governed by the terms and conditions of (( their )) employment with the UKAEA" ( Annexes 11 and 12 to the application ).

The Commission admitted that this practice could be considered discriminatory and that the Joint Undertaking was going to change it immediately .

It is indeed undeniable that that practice constituted discrimination on grounds of nationality and I propose that the Court should so adjudge .

Candidates of British nationality ought to have had the possibility of being offered a post under the JET project by member organizations other than the UKAEA . The Statutes contain no provision requiring the Director to adopt the position described above .

In the same context the Court requested the applicants and the defendants to reply to the following questions :

1 . Have any of the applicants who have been given a promise of re-employment at the end of their contracts with the JET Joint Undertaking by a member organization other than the United Kingdom Atomic Energy Authority been forced, on account of their British nationality, to give up such a job guarantee and accept that offered by the United Kingdom Atomic Energy Authority?

2 . If so, state the names of the applicants concerned and the circumstances in which they were compelled to accept the change of job guarantee .

It appears from the replies to those questions that none of the applicants could show that he had a guarantee of employment from a member of the Joint Undertaking other than the UKAEA .

I therefore propose that the Court should also find that such proof has not been adduced .

Since the examination of the applicants' first submission has thus made it possible to form a judgment on the practices followed by the Commission, I can now, when examining the second submission, disregard the way in which the Statutes were applied and concentrate exclusively on the question whether or not those Statutes contain discriminatory provisions .

2.2 The question of the illegality of the Statutes

In their second submission the applicants rely, by way of the plea of illegality, on the unlawfulness of the Statutes of the Joint Undertaking in so far as they authorize a system of recruitment which is contrary to fundamental principles of Community law .

In the applicants' view, the relevant provisions of the Statutes contravene the principle of equality or that of the prohibition of discrimination on grounds of nationality or the principle of equal treatment in employment, expressed in Articles 48, 49 and 119 of the Treaty, or all of those principles .

The fact that staff made available to the project by the UKAEA and staff seconded by other members of the Joint Undertaking are treated differently is not denied by the defendants .

The question remains whether it is necessary to examine that difference in treatment with reference to the principle of equal treatment or to the prohibition of discrimination based on nationality .

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 ."

The Statutes do not therefore refer to the nationality of the staff in question but only to the fact that they are employed by the host organization .

It may also be noted that, according to a footnote on page 5 of the application in Case 271/83, one of the applicants has dual British and Dutch nationality, another is a New Zealand national but has applied for British nationality and a third is Canadian .

Since the possibility cannot be discounted that the host organization will one day also engage nationals of countries not belonging to the Commonwealth and in particular nationals of other Member States of the Community, it seems preferable, all things considered, to examine the question with reference to the principle of equal treatment .

A number of arguments have been put forward by the defendants to justify the difference in treatment at issue .

First of all, it is not possible to agree with the Council' s argument to the effect that the difference in treatment of the two groups is not unlawful because it is due to the different arrangements applicable to them under the Statutes . The short reply to that argument is that the Council created that difference in treatment by its decision and the Statutes appended to it . The Court has consistently held that identical cases must be treated identically and different cases differently . For a difference in treatment to be permissible, it must reside in objective circumstances . The argument put forward by the Council concerning the different arrangements under the Statutes is not sufficient in this respect .

The Commission, for its part, considers that the difference in treatment is justified by the role of the members in the JET project, its temporary nature, and the corresponding need for arrangements for the re-employment of staff by the member organizations when the work is completed .

The fact remains, however, that persons made available to the project by the other member organizations also enjoy that guarantee of re-employment and they have been recruited as temporary servants of the Community .

The Council and Commission also accept that the difference in treatment cannot be justified by financial considerations .

The Commission further argues that, if all members of the staff were treated identically, this could have repercussions as regards the regulations applicable to staff working for other joint undertakings and staff working on the fusion programme under association agreements concluded between Euratom and national research laboratories .

In answer to that argument it must firstly be pointed out that the JET project is intended to be a Community project, as is clear from the third recital in the preamble to the Council Decision and Article 8.2 of the Statutes which provide that :

"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 ."

That requirement is not to be found in the other joint undertakings, which are quite different from the JET project ( in this regard, see in particular the Council' s rejoinder ).

Those undertakings existed as national undertakings before being converted into joint undertakings . The JET Joint Undertaking was created by the Council . Its Statutes were drawn up and adopted by the Council; those of other joint undertakings were only "approved" by the Council .

The other joint undertakings have their own staff governed by regulations laid down by the national authorities .

Although Euratom staff are also seconded to those other joint undertakings as well as to laboratories which have concluded an association agreement with Euratom, only a few persons are involved each time . I should point out that the genuine Euratom servants assigned to the JET project are only 11 in number . But besides them there are 162 temporary servants of the Community specifically recruited for the project .

I should also point out that at the hearing the Council, answering questions put by the Court, expressly confirmed its earlier view that the provisions are designed to ensure a balance as regards the nationality of the members of staff composing the project team . However, I do not understand why such a balance cannot be achieved within the group of temporary Commission officials .

The main argument in favour of the difference in treatment at issue - and there is undoubtedly considerable force in it - is to the effect that there must be no discrimination amongst the staff of the UKAEA working at Culham depending on whether they are assigned to the JET project or are carrying out research as part of the fusion programme under the association agreement between the British laboratory and Euratom .

Let it be said in the first place that there will therefore of necessity be a difference in the treatment of two groups of persons . The question is simply whether the line of demarcation should cut through the staff assigned to JET or through the staff under the direct control of the UKAEA .

It seems to me that this dilemma, too, can only be resolved by applying the criterion based on objective circumstances .

Let us therefore compare the position of staff who in law come under the UKAEA and are assigned to the JET project with :

( i ) the position of staff assigned to the project by the other members of JET, and

( ii ) the position of staff of the UKAEA working under the association agreement .

Those comparisons lead me to make the following observations .

Staff belonging to the UKAEA assigned to JET and staff assigned to the same project by the other members of JET have the following four characteristics in common :

( a ) they were selected by the Director of the JET project;

( b ) they work under the authority of that Director;

( c ) they do exactly the same work;

( d ) they are paid from the funds of the Joint Undertaking .

They differ from one another in two respects :

( i ) they have different employers;

( ii ) one group has had to expatriate itself, the other not .

If one then compares the situation of the employees of the UKAEA assigned to JET with the situation of the employees of the same organization working under the association agreement, one finds that the situation is exactly the opposite : characteristics ( a ) to ( d ) are not common to both groups of employees, whereas points ( i ) and ( ii ) are .

It may perhaps be objected, with regard to point ( c ), that there is, after all, some similarity as regards the work done . That is true in the sense that the two groups of persons are working with the same aim, namely to make controlled nuclear fusion possible . Is there not, however, a difference between them, comparable to the difference between the employees of a motor-car manufacturer and the employees of an independent contractor who supplies the manufacturer with gear-boxes or other components of a motor car on the basis of a contract?

But let us go back to the first comparison .

Of the two characteristics not common to those groups, expatriation constitutes an objective and by no means negligible(7 ) difference . However, it would be possible to take that into account when the remuneration arrangements are laid down .

On the other hand, the fact that they have different employers does not truly constitute a neutral circumstance arising from the nature of things .

The temporary servants are in fact also made available to the project by different employers to whom they will return; that has not prevented the Commission from provisionally taking them into its service and applying identical arrangements to them .

Moreover, the Community ( in the wide sense ) affords a precedent which I consider particularly relevant in this context, namely the European Schools .

In those schools, persons responsible to different employers receive identical remuneration .

Teachers seconded to the schools remain bound in law to their national authorities which, moreover, continue to pay them their salaries .

From the European Schools they receive a supplementary salary designed to bring their total remuneration up to the level fixed in the Regulations for Members of the Teaching Staff of the European Schools .

If they are nationals of the host country, they sometimes perform their duties a short distance away from colleagues answerable to the same Ministry of Education and teaching in a national school .

The Regulations for Members of the Teaching Staff of the European Schools therefore introduce a difference in treatment among members of staff responsible to the same employer and working a short distance away from one another and this situation has not hitherto been challenged .

There is, in fact, a European School at Culham .

That system shows that it is possible to respect the principle of equal treatment for persons doing the same work whilst fully maintaining their links with the authorities from which they come .

There is another fact which is worth noting . Whereas the staff of JET are selected by the Project Director, teachers seconded to the European Schools are not selected by the Headmaster but by the various State Ministries of Education .

To conclude on this point, I would therefore say that it appears, on the application of objective criteria, that the position of UKAEA staff seconded to the JET project has more points in common with the position of other staff working on that project than with the position of members of UKAEA staff working under the association agreement .

The inference which I draw from that situation is that the rules in question, laid down in Articles 8.4 and 8.5 of the Statutes, contravene the principle of equal treatment .

The contested Commission decision, which is based on those provisions, must therefore be annulled .

3 . The claim for damages

The applicants have requested the Court to order the Community to compensate them for the loss which they have suffered by reason of the unlawful recruitment procedures adopted by the Council and applied by the Commission . More specifically, they have requested the Court to order the parties to seek to agree figures on the amount of compensation . They take the view in particular that at present it is not possible to quantify that amount since it must cover the difference between the remuneration they receive as members of staff of the UKAEA and the remuneration received as temporary servants of the Commission . It is not in fact possible at present to determine the grade in which they must be classified .

Having raised the objection of inadmissibility, the defendants have not made any further submissions as regards the claim for damages .

In my view, the conditions which the Court sets for the award of damages are fulfilled . In the present case, the breach of the fundamental principle of equal treatment resulting from the Statutes of the JET Joint Undertaking constitutes a sufficiently serious breach of a higher-ranking rule of law for the protection of individuals . The same is true as regards the de facto breach by the Commission, in recruiting British candidates, of the prohibition of discrimination on grounds of nationality .

At this stage, the Court cannot allow the applicants' claim except by ordering the parties to agree the amount of compensation .

The compensation must cover the period between the date on which the applicants sent their request to the Director of the JET project and the date of their engagement as temporary servants or the date of the entry into force of other arrangements guaranteeing equal treatment of all persons assigned to the project .

4 . General conclusion

In conclusion, I propose that in the present cases the Court should, as regards their substance :

( 1 ) Annul the contested decision of 1 November 1983 rejecting the applicants' request that they be appointed temporary servants of the Commission on the ground that it is based on provisions of the Statutes of the Joint Undertaking which must be considered inapplicable because they contravene the principle of equal treatment;

( 2 ) Allow the claim for damages to the extent of the difference between the remuneration that the applicants receive as members of staff of the UKAEA and the remuneration to which they are entitled as temporary servants of the Community;

( 3 ) Order the parties to seek agreement on the amount of compensation to be paid in each individual case and to submit a report to the Court on this matter within a period of six months;

( 4 ) Order that, in the event of their not agreeing within that period on the amount of compensation to be paid, the parties shall submit to the Court the exact figure for the compensation which in their view must be paid;

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

As far as the costs are concerned, everything depends on how the Court decides the question of admissibility :

( a ) If the Court simply declares the present applications inadmissible in so far as they are directed against the Commission, I nevertheless suggest that it should order each party to bear its own costs owing to the legal uncertainty which existed as regards the possibility for officials to choose one remedy or the other; as regards the applications directed against the Council, I propose that the Court should order the Council to bear all the costs;

( b ) If the Court declares the present applications admissible on the basis of Article 91 of the Staff Regulations of the European Communities in so far as they are directed against the Commission and admissible on the basis of Articles 151 and 188 of the EAEC Treaty in so far as they are directed against the Council, I propose that the costs be borne by those institutions;

( c ) If the Court decides to join, for the purposes of the judgment, Cases 271/83, 15, 36, 113, 158 and 203/84 and 13/85 on the one hand, in so far as they are directed against the Council, and Cases 159 and 267/84 and 12/85, directed against the Commission, on the other, I propose that solution ( a ) be adopted in the first set of cases and that the Commission should pay the costs in the second set of cases .

(*) Translated from the French .

( 1 ) The European Atomic Energy Community ( EAEC ); the host organization ( the UKAEA ); the bodies corresponding to the latter in the other Member States of the EAEC or those Member States themselves; the National Swedish Board for Energy Source Development .

( 2 ) Opinion of Mr Advocate General Capotorti in Case 48/76 Reinarz v Commission (( 1977 )) ECR 299 at p.*302 .

( 3 ) Case 167/80 Curtis v Commission and Parliament (( 1981 )) ECR 1499 at p.*1525 .

( 4 ) Judgment of 11 July 1985 in Case 43/84 Maag v Commission (( 1985 )) ECR 2581 paragraph 26 .

( 5 ) It is established case-law that persons claiming the status of member of staff of the Community within the meaning of Article 152 of the EAEC Treaty also have access to the Court ( see, most recently, the judgment of 11 July 1985 in Joined Cases 87 and 130/77 and 22/83 Salerno, Ane and Others v Commission and ( in Case 22/83 ) Council (( 1985 )) ECR 2523 .

( 6 ) Judgment of 3 February 1977 in Case 91/76 De Lacroix v Court of Justice (( 1977 )) ECR 225 at p.*229 .

( 7 )Though a certain number of employees of the UKAEA were recruited when they were working outside the United Kingdom .