6.

Despite the brevity of the Commission's arguments in which it contests the applicability to freelance interpreters of the rules relating to auxiliary staff in the Conditions of Employment and, consequently, seeks to have Mr Maag's action declared inadmissible, I share its point of view. It is, however, appropriate to emphasize in support of the Commission's contentions that the needs which are met by freelance interpreters are of a special character, that the rules laid down by the Commission to take account of that factor are adequate and, in connection therewith, that the Conditions of Employment are inapplicable in that regard. I shall consider each of those three points in turn. (a) There is no provision either in the Arrangements or in the Agreement which expressly defines the conditions governing the status of freelance interpreters or the precise nature of the duties performed by them. However, some of the rules which apply to freelance interpreters, together with information drawn from practice, enable the special features of their services and the needs which they meet to be identified. The number of self-employed interpreters is significant. In reply to a question from the Court, the Commission has explained that under the budget it has at its disposal 384 interpreters' posts, of which no more than 305 have been filled so far, usually by competition, as against 2060 freelance interpreters listed on 1 January 1985. Those figures indicate the nature and extent of the different requirements which are met by officials or temporary servants of the Communities, and by freelance interpreters. — The former handle current business on a regular basis and thus meet the need for interpretation in the day-to-day running of the departments to which they are attached; — whereas the latter are called whenever necessary, that is, when the number of established interpreters is insufficient in certain circumstances to cover needs which outstrip the normal facilities for interpretation. Freelance interpreters are therefore called upon to ‘cover’ needs which arise from time to time and which, although at times substantial, are sufficiently foreseeable to justify the creation of an appropriate reserve of interpreters. That brings to mind, of course, the European summit meetings, the agricultural ‘marathons’ and the meetings of the various bodies of the Council which require throughout the year constant interpretation, though on a short-term basis. That is borne out by the statistics submitted by the Commission in reply to a question put to it by the Court concerning the total number of days worked by freelance interpreters in 1983: Total number of days worked Number of interpreters JICS Division (Brussels) IX/D/2 (Luxembourg) from 1 to 5 142 221 from 6 to 10 54 79 from 11 to 20 70 58 from 21 to 50 130 132 from 51 to 100 99 171 from 101 to 150 57 129 from 151 to 175 9 9 from 176 to 189 2 1 On analysis, the above table reveals that more than 85% of the freelance interpreters called in 1983 worked on average between 1 and 100 days and, of those, more than three-quarters worked between 1 and 50 days. By contrast, the Commission has stated that a member of the auxiliary staff employed for one year would normally work 220 working days, if allowance is made for periods of leave and weekends. Those findings taken together show that freelance interpreters may be described as occasional assistants of the Community's interpreters who provide a public service; they are engaged, for as long as is strictly necessary, to cover exceptional staff shortages which arise on a temporary or seasonal basis and are unrelated to the number of established interpreters available to the Commission under the budget. The special nature of the services required of freelance interpreters constitutes in objective terms the basis of the separate rules applied to them. (b) It seems to me that the Commission has drawn the consequences resulting from the objective differences between the use of established interpreters and the use of their freelance counterparts, by creating a set of rules for the latter which is distinct from the Staff Regulations or the Conditions of Employment. It is therefore futile to rely on the existence of similarities between the provisions governing those two particular categories of interpreters as an argument against the Commission. Instead, their existence redounds to the credit of the Commission, which was anxious to offer freelance interpreters, to the extent permitted by the nature of their services, a professional status which in some respects (such as indexing of remuneration and compulsory social security) resembles that of other interpreters. However, to return to the comparison made by the applicant, Mr Maag has laid particular emphasis on the identical conditions in which both freelance and other interpreters must work. That situation merely reflects the fact that the tasks carried out are identical. Since interpreters are required to work as a team there is no reason why conditions of work should differ according to the rules under which interpreters are engaged. The position of subordination in which freelance interpreters necessarily find themselves when performing their services for one or other of the institutions merely reflects the fact that interpreters carry out the same duties. Moreover, a position of subordination cannot serve as a reliable criterion for classifying the nature of the relationship between the Community and all those who work for it. Both established officials and staff engaged under contract are in a position of subordination, which must therefore be seen as a relative concept. Ultimately the fact of their performing identical tasks and taking instructions from Commission officials is merely the logical consequence of the incorporation of freelance interpreters within the Community's interpretation service. It promotes cohesion and efficiency which are essential if a high standard of interpretation is to be maintained. Besides those factors which are common to all interpreters, the special features of the rules applicable to freelance interpreters cannot be regarded as evidence of discriminatory treatment. On the contrary, those features reflect the position of self-employed interpreters, which must perforce be regulated by provisions different from those governing interpreters who are officials or servants of the Communities, particularly as regards exemption from Community tax. In that connection a comparison of the daily scales of remuneration is instructive. In reply to a question from the Court, the Commission made a comparison between the gross remuneration per day of work, after 100 days of work, of a freelance interpreter in Category I and that of a member of the auxiliary staff in Category A, Group III, Class 1. Only the gross remuneration can be used because no precise figures are available for the social security benefits received or the national taxes paid by freelance interpreters, which would enable a comparison of net incomes to be made. It would appear from the evidence furnished by the Commission that the daily remuneration of a freelance interpreter is more than twice as high as that of a member of the auxiliary staff in Category A/III/1. If account is taken — as the applicant suggests — of the basic salary of a member of the auxiliary staff classified as ‘experienced’ under Article 53 of the Conditions of Employment, the basic gross daily remuneration of a freelance interpreter is still almost twice as high as the remuneration of a member of the auxiliary staff with comparable experience. That difference in remuneration seems to me to reflect the difference in status between the persons concerned, particularly in matters of social security and taxation. Another special feature of the rules applicable to freelance interpreters is the absence of any restriction as regards the terms on which they are engaged. That flexibility enables the Commission to call upon the services of self-employed interpreters who alone are capable of covering certain needs (such as interpreting from non-Community languages), or whom the Commission would be unable to recruit in accordance with Community legislation by reason inter alia of their nationality, their obligations with regard to military service, their place of residence, or the range of languages which established interpreters must actually possess (knowledge of three Community languages). Freelance interpreters also include interpreters who have either been Community officials in the past or — as may be inferred from Article 2 of the Arrangements — have previously been employed as members of the temporary or auxiliary staff. The same flexibility enables such interpreters freely to choose their business residence which in more than 20% of cases lies outside the Community. The truth is that the essential criterion for engaging a freelance interpreter is the quality of his interpretation, which is soon revealed in the course of his work and which determines whether he is engaged again. (c) The special nature of the services which freelance interpreters provide and the corresponding autonomy of the rules governing their professional status make it inappropriate to apply the Conditions of Employment to such interpreters. The application of the provisions relating to temporary staff may be ruled out at once, as indeed the applicant himself has done. The services performed by freelance interpreters cannot, precisely because they are occasional, be described as ‘permanent Community public service duties’ (Joined Cases 225 and 241/81, Toledano Laredo and Garilli v Commission, [1983] ECR 347, paragraph 12 of the decision). That distinction finds expression in the budgetary provisions dictated by rational management of the public finances of the Community (see the Opinion of Mr Advocate General Lagrange in Case 18/63, Wollast (née Schmitz) v EEC, [1964] ECR 103 at pp. 107 and 108). The administrative authority's appraisal of its permanent requirements leads to the inclusion in the institutions' budget of specific posts which are permanent themselves, whilst occasional or exceptional requirements are met, wherever necessary, by recourse to specialists who are remunerated out of total appropriations according to the frequency and duration of their services. A further question is whether the body of rules laid down by the Conditions of Employment in respect of members of the auxiliary staff who, like freelance interpreters, are paid out of total appropriations would have enabled the Commission to meet the needs which constitute the reason for the engagement of such interpreters. The criteria elicited by the Court in its judgment in the Desbormes case for defining contracts for the employment of auxiliary staff, as distinct from contracts for the employment of temporary staff, may be applied to freelance interpreters. The Court has held that a contract for the employment of auxiliary staff is characterized by ‘its precariousness in time’, since its purpose is to allow, by the recruitment of ‘occasional’ staff, ‘the performance of administrative duties which are of a transitory nature [or] which fill an urgent need ... ’ (paragraphs 37 and 38 of the decision). The question therefore arises whether those rules are appropriate for regulating the position of freelance interpreters. The answer must be in the negative. The precarious nature of contracts for the employment of auxiliary staff, as described in that judgment, stems from the provisions of Article 52 of the Conditions of Employment which provides that ‘the actual period of employment of auxiliary staff, including any period under renewal’may not exceed one year in all cases. In that respect, the Court has held that a contract of that kind cannot be ‘wrongfully used to assign ... staff to permanent duties for long periods ... ’ (Case 17/78, cited earlier, paragraph 38 of the decision). That strict limitation makes it entirely impracticable to resort to auxiliary staff contracts for the purpose of engaging freelance interpreters for longer than one year, unless the Commission constantly renews by rotation the freelance interpreters at its disposal or disregards the time limit prescribed, which would mean resorting to a fictitious arrangement or a ploy to circumvent it. Since that is out of the question, recourse to the rules applicable to auxiliary staff is unsatisfactory because freelance interpreters are required to offer their services independently of any one-year limit to the duration of their contracts, as that would run counter to the nature of the services provided. Furthermore, whilst making self-employed interpreters liable to the same Community tax as members of the auxiliary staff by decision of 16 February 1983, the European Parliament referred, as regards the other conditions applicable to such interpreters, not to the Conditions of Employment but to the Arrangements. This confirms that the Conditions of Employment are inappropriate in that regard on account of the special nature of the services performed by self-employed interpreters, which justifies the adoption of specific contractual rules. Moreover, it should be noted that Article 78 of the Conditions of Employment relates only to ‘auxiliary staff engaged by the European Parliament for the duration of the work of its sessions’ and provides ‘by way of derogation’ from the provisions of the title concerning auxiliary staff that such staff ‘shall be subject to the conditions of recruitment and remuneration laid down in the agreement between the Parliament, the Council of Europe and the Assembly of the Western European Union in respect of engagement of such staff’. Since that constitutes an exception, its wording and scope must be interpreted restrictively. In that regard it is sufficient to point out that Article 78 of the Conditions of Employment introduces a derogation exclusively for the benefit of the European Parliament, which the latter has relied upon in the circumstances referred to earlier in the exercise of its powers of internal organization. In other words, the Conditions of Employment would have to be amended before the European Parliament's decision based on Article 78 could be extended to all freelance interpreters.