Opinion of Mr Advocate General Darmon delivered on 11 October 1989. - Augustin Oyowe and Amadou Traore v Commission of the European Communities. - Officials - Former staff of the European Association for Cooperation. - Case C-100/88.



European Court reports 1989 Page 04285



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . On several occasions in the recent past the Court has had to consider the legal situation of the European Association for Cooperation (" the EAC ") and the nature of its relationship with the Commission of the European Communities, in particular from the point of view of the legal regime applying to staff recruited by the EAC . The Court is sufficiently well acquainted with the appraisals carried out in the judgments of 11 July 1985 ( 1 ) and the conclusions reached in those judgments on the basis of those appraisals for me not to have to provide an exhaustive description of the relevant factual and legal data . I shall therefore merely set out a number of features specific to this case .

2 . Before the large-scale appointment of staff as European officials which was carried out from 1981 onwards in connection with the establishment of the European Cooperation Agency, staff recruited by the EAC fell into one of the following three categories :

( i ) staff employed in the developing countries (" overseas staff ");

( ii ) headquarters staff, responsible for managing the overseas staff;

( iii ) staff recruited by the EAC under a special contract (" special contract staff ") providing for their secondment to Directorate-General VIII of the Commission ( Development ).

3 . In 1978 and 1979, respectively, the applicants, Mr Traore, who has dual Malian and French nationality, and Mr Oyowe, who is a Nigerian, were, in common with certain other EAC employees, recruited under special contracts, known as "cooperation contracts", the provisions of which are largely similar to the contracts of the special contract staff, except for the fact that they are funded differently, namely by the European Development Fund . Since their recruitment, the applicants have been employed as journalists on the publication The Courier : Africa-Carribbean-Pacific - European Community ( the "Courier "). The present situation is that they are, together with a third journalist employed on the publication, who is also of African origin, the only members of staff recruited by the EAC in one or other of the three categories referred to above who have not been appointed European officials .

4 . The applicants' chief concern, it would seem, is not so much their non-appointment as European officials per se, but their present situation with regard to their pension rights on retirement . The reason is that because they are employed under an employment contract by an association governed by Belgian private law, their retirement pension scheme is governed by the Belgian law on pensions, and, under the relevant Belgian legislation, they would cease to be entitled to be paid pensions if they were to leave Belgium territory . Furthermore, no provision is made under the Belgian legislation for persons leaving the territory to be repaid the retirement pension contributions which they previously paid in . Faced with the total loss of their pension rights in the event that they should retire to Africa, the applicants initiated discussions with the Commission with a view to resolving the problem . Since those approaches came to nothing, this case was brought before the Court .

5 . Essentially, the applicants are asking the Court for a declaration that the Commission has been their real employer with effect from their recruitment by the EAC and that they are entitled to the benefit of a procedure for appointing them officials of the Commission . In the alternative, they ask the Court to order the Commission to guarantee that they will enjoy the benefit of their retirement pensions regardless of the country in which they subsequently reside .

6 . As I have intimated, in my estimation the claim to the status of employees or officials of the Commission is, as far as the applicants are concerned, more in the nature of a means than an end . As their counsel clearly showed at the hearing, the prime question is the problem of their pensions . If a specific solution had been found to that problem, the applicants probably would not have claimed the status of Commission employees or officials . But matters being as they stand, the applicants are claiming that status .

7 . The Commission' s objections as to the admissibility of the application should not occupy the Court' s attention for very long . I would point out in the first place that according to the case-law of the Court

"not only persons who have the status of officials or of employees other than local staff ... but also persons claiming that status"

may bring an action before the Court to contest a decision adversely affecting them . ( 2 ) In the judgment in Salerno ( 3 ) the Court applied that case-law in considering applications for, among other things, the annulment of a decision of 4 November 1976 of the EAC Administrative Board which were brought before the Court by EAC headquarters staff in 1977, that is to say before any EAC staff were appointed officials; the Court considered that the actions against the Administration Board' s decision impliedly refusing to apply the Staff Regulations of Officials in the case of the applicants were admissible, since the applicants were seeking recognition that they had been officials of the Commission since their engagement by the EAC . I can see no reason for taking a different view in the case of an application for the annulment of an implied decision of the Commission refusing a request made by two AEC staff members under contracts to be "treated as officials within the meaning of the Staff Regulations ". ( 4 ) In addition, I consider that the applicants have asked ever since their initial application that, in the alternative, the Commission should be ordered to guarantee that they will enjoy the full benefit of their pensions regardless of the country in which they may reside in the future . The fact that that claim was made in the alternative made it clear that it was separate from the question as to whether the applicants were members of the Community' s public service, and constituted a claim for damages against the Communities . Accordingly, the reference in the reply to the second paragraph of Article 215 of the Treaty was simply a formal clarification and not an amendment of the legal basis of the claim . Consequently, I do not consider that any claim as to inadmissibility can be based thereon .

8 . I shall now turn to the substance . In my view, the first head of claim, to the effect that the Court should declare that the applicants are members of staff of the Commission and that the conditions of employment of members of the temporary staff should apply to them, should manifestly be dismissed in so far as the Court has already clearly stated that the Commission was not the employer of the members of staff recruited by the EAC . In the judgment in Salerno, ( 5 ) the Court first considered, with regard to arguments put forward by EAC headquarters staff, that the circumstances to which they referred

"(( did )) not ... make it possible to ignore the difference in law between the position of the EAC' s staff, engaged by an association established under private law, and that of the officials and other servants of the Commission, appointed under the Staff Regulations of Officials of the European Communities",

before going on to say that

"it was the EAC and not the Commission which was the applicants' employer ".

In the judgment in Appelbaum, ( 6 ) which was concerned with the situation of EAC special contract staff, the Court stated, referring to the judgment of the same date in Salerno, that the engagement and appointment by the Commission of EAC special contract staff when it appointed them officials constituted recruitment of staff "from outside the institutions", which implies that prior to their recruitment by the Commission the EAC special contract staff were outside the institutions and that the Commission was not their employer even though they were seconded to it .

9 . That the legal situation of the EAC staff under special contracts and of those staff who, like the applicants, were recruited under cooperation contracts (" cooperation staff ") is similar is not in dispute as between the parties . As regards the applicable legal regime, there is no special feature which would suggest that, unlike special contract staff, EAC cooperation staff are employed by the Commission .

10 . It remains to be considered whether, independently of the legal rules, considered in the abstract, of the cooperation staff contract to which the applicants were subject, the conditions in which their duties were performed put them in fact in the position of employees of the Commission . The arguments put forward by the applicants in that regard are not conclusive in so far as they are similar to arguments which the Court has already considered in connection with the cases cited above, but which did not lead it to conclude that the Commission was the employer . Accordingly the reference to the provision in the specific terms of the applicants' contracts to the effect that they are placed "at the disposal of the Commission of the European Communities" or to the provision of one of the general terms of the cooperation staff contract to the effect that they agree to undertake "any research, mission or study which might be entrusted to (( them )) by the Commission ..." is not conclusive, since the judgments in Appelbaum and Hattet ( 7 ) were concerned with special contract staff who, by definition, were also placed at the disposal of the Commission and were subject to specific provisions largely resembling the provision mentioned above, yet the Court did not hold that the Commission was their employer .

11 . Likewise, the fact that the Courier appears in the establishment plan of DG VIII is not conclusive, since in the judgment in Salerno the Court held that the inclusion of the EAC in the Commission' s establishment plan in no way proved that it was an administrative unit of the Commission .

12 . In fact, the applicants have produced no evidence, and in particular no document, which shows that Commission officials, acting as such and not in their capacity as members of the Administrative Board of the EAC or as members of the editorial team of the Courier, gave journalists instructions or effected formal acts of authority with respect to them . In particular, the warning given to Mr Lucien Pagni, to which the applicants refer, was issued by a director of the EAC and not by a person in authority at the Commission .

13 . Admittedly, there is absolutely no doubt that in various ways the Commission was closely associated with the functioning of the EAC and that it in fact supervised manifold aspects of its activity and even, in certain respects, directed it . But, given those constant facts, the Court considered that the EAC was not an administrative unit of the Commission and that the latter was not the employer of the staff recruited by the EAC . The applicants' situation in the specific context of the Courier does not give rise to any new factor in comparison with the general situation on which the Court has already ruled . Consequently, I take the view that the Commission cannot be regarded as the applicants' employer and that, as a result, the first head of their application must be dismissed .

14 . The discussion of the second head of claim has been circumscribed to a certain extent by the arguments exchanged between the parties . The Commission does not maintain that the legal regime of the cooperation staff contract to which the applicants are subject was capable of justifying any difference in treatment, as far as their appointment as officials was concerned, with respect to EAC special contract staff, all of whom were given the benefit of a procedure enabling them to be appointed officials . In a document addressed to the Court the Commission states in that regard that the distinction between the two types of staff member is "essentially budgetary in nature", and adds that the "contracts governing employment relations between the EAC and special contract or cooperation staff ... are largely similar and their duties, for any given grade, do not exhibit any marked difference ". ( 8 )

15 . In fact, the divergence of view between the applicants and the Commission is focused on one single point . According to the Commission, the very nature of the duties of Mr Oyowe and Mr Traore, which consists in representing, in their capacity as journalists, the "perspective of the ACP countries" on the Courier, is incompatible with their having the status of Community officials, which, under the Staff Regulations, entails a duty of allegiance to the Community .

16 . I shall say forthwith that consideration of the situation of the journalists of the Courier has not brought me to the same conclusion as the Commission . It seems to me that the journalists on the Courier were in reality called upon to carry out their duties in comparable conditions irrespective as to whether they were of ACP or EEC origin . Consequently, there was no special feature as regards the conditions in which they carried out their duties which justified journalists "of ACP origin" being treated differently, as regards their being appointed officials in the Community public service, from other journalists working on the Courier .

17 . In the first place, I consider that the Commission' s statement that the applicants, as "journalists of ACP origin", were subject to special rules of professional conduct on the Courier is, at least, debatable . The following statement occurs in the Minutes of the meeting of the Courier' s joint committee held on 3 October 1978, to which the Commission refers :

"The agreement makes it absolutely clear that the members of the Courier' s editorial team who are of ACP origin are not here to defend the points of view and interests of the ACP States any more than the European members of that team are here to defend European points of view and interests . The Courier is intended to provide facts and documentation about EEC-ACP cooperation ... The editorial team must therefore aim at reporting on that cooperation with objectivity and balance while avoiding making the Courier either insipid or controversial as between the EEC and ACP partners ".

A little further on in the same Minutes it is stated that "the quality of the Courier' s editorial team is excellent as regards both its members' professional skills and their loyalty to the aims of the publication . The Committee considers that they are all serving a common cause, that of cooperation between the ACP States and the Community ".

18 . Consequently when it comes to taking into account the rules of professional conduct applicable to the journalists of ACP origin working on the publication, it is hard to find in the Minutes of the joint committee meeting referred to by the Commission confirmation of the claim that those journalists have their own rules of professional conduct, distinct from those applying to the European journalists . On the contrary, what emerges from those Minutes is the idea of rules of professional conduct common to all the members of the editorial team . Under those rules of conduct, each member of the editorial team must show the same independence with regard to both "ACP points of view" and "European points of view ".

19 . In those circumstances, the rules of professional conduct applicable to members of the Courier' s editorial team do not seem to me, on the face of it, to bear out the idea that the journalists of ACP origin have the special characteristic of having to "represent the ACP perspective" through their journalistic activity . Can they be said to represent that perspective symbolically by reason of their national origin? That is possible, but in any case from the point of view of their rules of professional conduct they are not under a duty to represent that perspective through their work as journalists and in their articles . On the contrary, their rules of professional conduct tend to require them not to act as representatives of ACP points of view, in the same way that the journalists of European origin are required not to behave as representatives of EEC points of view .

20 . I would like to bring to the Court' s attention one point; it is perhaps merely a detail but it does to a certain extent lend colour to these initial observations . A photocopy is annexed to the application of the latest issue ( at that time ) of the Courier, the January-February 1988 issue . On page 3 there is the contents page . At the foot of that page there is written in small letters : "The articles express the views of the authors only ". In the light of that notice it can be said that the articles printed in the Courier - irrespective of their authors and, more precisely, irrespective of the geographical origin of their authors - do not particularly express the views of the ACP countries more than those of the EEC and are as binding on the ACP countries as they are on the EEC .

21 . As a result, I consider that the general make-up of the Courier' s editorial team is designed to be non-dependent with respect to ACP and EEC points of view and that in particular, on the face of it, none of its members, whatever his geographical origin, is called upon to act as the spokesman of one or other of those points of view . Whilst it is correct to say that journalists from the ACP countries were recruited following a request made by the ACP group, there is nothing to suggest in the principles with regard to professional conduct set out by the joint committee that the aim was for those journalists to provide institutionalized representation of ACP points of view . Rather, those principles tend to suggest that it was a question primarily of ensuring a symbolic representation of the ACP perspective, just as the representation of the perspectives of the 12 Member States is secured by recruiting officials of the 12 nationalities of the EEC, without officials of each nationality being expected to devote themselves at work to promoting the views of the Member State of which they are nationals .

22 . Taking that reasoning a stage further, I consider that if all the members of the editorial team are subject, on the Courier, to the same rules of professional conduct, specifically as regards their independence with respect to ACP and European viewpoints, the question as to whether or not journalists should have the status of officials should raise problems of the same degree irrespective of the journalists' origin . In sum, if the status of official is incompatible with being a member of a team of journalists whose code of professional conduct is as I have described it, then that must be true of all the journalists . And if it is considered, where an identical code of professional conduct applies, that that incompatibility does not apply in the case of one or more journalists, it cannot be proved to apply in the case of the others .

23 . There were - and still are - on the editorial team of the Courier Commission officials, starting with the present editor . There has been no indication from the Commission in the course of these proceedings that that situation creates difficulties with regard to the rules of professional conduct applying to the members of the editorial team . Above all, one of the members of EEC origin of that team, Mr Ian Piper, was appointed an official in 1981 . That journalist, I would point out, was subject in principle to the same rules of professional conduct as his two colleagues, Mr Oyowe and Mr Traore, as regards his non-dependence or independence with respect to ACP and EEC points of view . Consequently, I conclude that the Commission was not entitled to rely on an alleged special situation of the applicants and on their alleged "representation of the ACP perspective" in order to deny them the right to be appointed officials, which, moreover, it granted to another journalist on special contract . In order to reach the opposite conclusion, the Courier, and in particular its editorial team, would have had to have been organized on a genuinely joint basis and that would have had to have been reflected in its code of professional conduct . As we have seen, that is not the case .

24 . The Commission adverted to the practical - and, in its view, major - problem which would be raised by appointing the applicants officials in so far as if they left their posts in the course of their careers, those posts would have to be filled by other officials who, in principle, would be nationals of one of the Member States, thus precluding the "representation of the ACP perspective ". We have seen the limits, in the area of rules of professional conduct, of the idea of the "representation of the ACP perspective ". It could be said that if all journalists, irrespective of their origin, are expected to show comparable independence of view, it might not perhaps be really necessary to recruit journalists outside the EEC . I will add that in the event of posts falling vacant, as postulated by the Commission, the possibility might be contemplated of recruiting temporary staff to fill the posts in question and making an exception to the rule that staff must be nationals of one of the Member States . We are all aware that the management of vacant posts does not invariably preclude a degree of flexibility . In my view, in any case, a situation such as that of the Courier would justify such flexibility, in so far as that might be useful to the EEC from the point of view of the quality of its relations with the ACP countries .

25 . Having reached this stage in the reasoning, must it be considered that the second head of claim is well founded and well founded with respect both to Mr Traore and Mr Oyowe? In the judgment in Appelbaum ( 9 ) the Court held that there was no essential difference between the position of the headquarters staff and that of the special contract staff justifying differing treatment with regard to the rules on the appointment of staff as officials . It appears to me that that should also be true, and with greater reason, with regard to cooperation staff as compared with the special contract staff, who were appointed officials, in view of the very great similarity of the legal rules to which staff members in those two categories are subject as a result of their respective contracts . The Commission itself has acknowledged that similarity and stated that the only difference of note related to the financing of the remuneration paid under the cooperation staff contracts, that is to say, a factor which has nothing to do with the rights and obligations devolving on each party under the contracts . Lastly, as we have seen, no essential difference between a journalist on the Courier who was under a special contract and another journalist on that publication who was under a cooperation contract can be made out from the conditions in which the journalists' duties were carried out, nor therefore can those conditions justify any difference in treatment with regard to the appointment of staff as officials .

26 . However, it appears to me that that reasoning can be applied in its entirety only to the case of Mr Traore . In its rejoinder the Commission refers to the requirement laid down in Article 28(a ) of the Staff Regulations to the effect that "an official may be appointed only on condition that ... he is a national of one of the Member States of the Communities, unless an exception is authorized by the appointing authority ...". Whilst Mr Traore has French nationality, Mr Oyowe is a Nigerian national . It does not appear to me that he can base an obligation on the part of the Commission to authorize an exemption in his favour in respect of the nationality requirement on the identical situations argument considered above . It is, in my view, inherent in the nationality condition laid down in Article 28 ( a ) of the Staff Regulations that it should not have to be waived where a person who does not satisfy it is in a situation which in other respects is identical or comparable to that of another person who fulfils that condition . To put any other construction on the nationality condition would make it nugatory in practice in so far as the administration would as a result be put under an obligation to authorize an exception from it in objectively comparable cases, whose variety and limits could not be defined in advance .

27 . I consider that in order for the nationality requirement to have any meaning and not be a mere formality, it must be acknowledged that the appointing authority ( the Commission in this case ) has an absolute discretion to decide whether or not it is appropriate to authorize an exception thereto . The fact that a situation is in other respects objectively identical cannot place the appointing authority under a legal obligation to authorize an exception . From that point of view, it does not appear to me that authorizing an exception from the nationality requirement can be put on all fours with the question of derogating from the general rule that appointments must be made to the starting grade, which the applicants raised on the basis of the Court' s judgment in Appelbaum . ( 10 ) The two derogations apply to principles whose scope is manifestly not the same .

28 . Does this mean asking the Court to deliver a judgment which will satisfy in part the claims of Mr Traore while leaving Mr Oyowe, in the face of his problems, in a situation which is unsatisfactory from the point of view of fairness? In practice, it seems to me that a solution can be found which will avoid sacrificing irretrievably Mr Oyowe' s situation . I consider that, having regard to all the material before the Court and in particular the arguments developed by the Commission in the course of the procedure - with the objection based on the nationality requirement being made somewhat late, namely not until the rejoinder - that it has not been sufficiently well made out that Mr Oyowe' s lack of "Community" nationality was the factor which caused the Commission to adopt the view that he should be denied any right to be appointed an official . More specifically, it has not been sufficiently made out that had the Commission realized that it was legally impossible for it to rely on the argument about "representing the ACP perspective" in order to refuse to give Mr Oyowe the benefit of a procedure for appointing him an official, it would have adopted the same position on the basis of the nationality requirement alone . In my view, the Commission should re-examine Mr Oyowe' s position in the light of the analysis which I have proposed to the Court of the alleged incompatibility of the status of Community official with the applicants' task of "representing the ACP perspective ". The Commission should then consider in the course of that re-examination whether it takes the view that it should make an exception to the nationality requirement in the case of Mr Oyowe . Besides, the possibility that by the time that re-examination takes place Mr Oyowe will have obtained Belgian nationality is not ruled out .

29 . In carrying out that re-examination the Commission would have appreciable room for manoeuvre . As I have mentioned, to refuse to grant an exception would not be illegal . Nevertheless, may I say that in my view it would be appropriate for Mr Oyowe' s situation, viewed in the light of that of his colleagues, together with what I would term a sense of concern on the part of the Commission, to lead the latter not to opt for the solution of refusing to make an exception in Mr Oyowe' s case .

30 . Consequently, as regards the second head of claim, I propose that the Court should annul the Commission' s decision in so far as it refuses to take into consideration the request of Mr Traore and Mr Oyowe to be appointed officials, and remit the case to the Commission for it to take the necessary action with regard to each applicant in the light of the Court' s judgment in accordance with Article 176 of the Treaty; that should entail, in any event, the implementation, as regards Mr Traore, of a procedure leading to his appointment as an official .

31 . My remarks on the last head of claim, which I consider should be dismissed, will be more brief . I cannot see how the Community could incur liability vis-à-vis either of the applicants . The relevant claim is made in the alternative to cover the eventuality of the Court' s dismissing the principal claims of both or either of the applicants or, in other words, in the event of the Court' s holding in particular that the Commission has not infringed, to their detriment, the principle of equality or non-discrimination . Consequently, it is hard to see in what respect the Commission could be held to have been at fault in that regard . Furthermore, in the light of the judgments cited above in which the Court plainly indicated that the Commission was not the employer of staff recruited by the EAC, I cannot see how the applicants' situation with regard to the Belgian legislation on retirement pensions, to which it is normal for them to be subject as employees of an association governed by Belgian private law, could be linked with any conduct of the Commission amounting to fault on its part . In practice, such a result could not be achieved without conflicting with the positions adopted in the Court' s case-law with regard to the EAC and its staff . If the applicants' employer is an association governed by Belgian private law, and not the Commission, it is impossible to see how the Communities could incur liability as a result of the application to the persons concerned of the Belgian legislation on retirement pensions . If the Communities do incur liability in that way then it is impossible to see how it could still be maintained that the Commission is not the employer of the staff recruited by the EAC, whereas that is what the Court has consistently held .

32 . In the final analysis, I consider that the Court should :

( 1 ) annulthe Commission' s decision relating to the applicants' complaint as regards their request that they should be appointed officials, and remit the case to the Commission for a new decision;

( 2 ) dismiss the other heads of claim;

( 3 ) order the Commission to pay the whole of the costs .

(*) Original language : French .

( 1 ) Joined Cases 87 and 130/77, 22/83, 9 and 10/84 Salerno and Others (( 1985 )) ECR 2523; Case 119/83 Appelbaum (( 1985 )) ECR 2423; Joined Cases 66 to 68 and 136 to 140/83 Hattet and Others (( 1985 )) ECR 2459 .

( 2 ) Judgment of 5 April 1979 in Case 116/78 Bellintani and Others (( 1979 )) ECR 1585, paragraph 6 .

( 3 ) See reference in note 1 .

( 4 ) Annex 5 to the application, p . 3, paragraph 10(a ).

( 5 ) See reference in note 1 .

( 6 ) See reference in note 1 .

( 7 ) See reference in note 1 .

( 8 ) Observations of 18 April 1989 submitted in reply to a question put by the Court, p . 2 .

( 9 ) See reference in note 1 .

( 10 ) See reference in note 1 .