Judgment of the Court (Second Chamber) of 11 July 1985. - Vittorio Salerno and others v Commission of the European Communities and Council of the European Communities. - Officials - Former staff of the European Association for Cooperation. - Joined cases 87, 130/77, 22/83, 9 and 10/84.



European Court reports 1985 Page 02523



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATIONS TO THE COURT - RIGHT OF ACTION - PERSONS CLAIMING THE STATUS OF OFFICIALS OR EMPLOYEES OTHER THAN LOCAL STAFF

2 . APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - REGULATION PROVIDING FOR A RECRUITMENT PROCEDURE DEROGATING FROM THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS

( EEC TREATY , ART . 173 , SECOND PARAGRAPH ; COUNCIL REGULATION NO 3332/82 )

3 . OBJECTION OF ILLEGALITY - NOT AN INDEPENDENT RIGHT OF ACTION

( EEC TREATY , ART . 184 )

4 . OFFICIALS - STATUS OF OFFICIAL - CONDITIONS FOR THE ACQUISITION THEREOF

( STAFF REGULATIONS OF OFFICIALS , ART . 1 , FIRST PARAGRAPH )

5 . BUDGET OF THE EUROPEAN COMMUNITIES - SCOPE - NOT BINDING ON THE LEGISLATIVE AUTHORITIES

6 . PARLIAMENT - RESOLUTION - SCOPE - NOT BINDING

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 PERSONS CLAIMING THAT STATUS .

2 . A REGULATION ADOPTED FOR THE PURPOSE OF RECRUITING CERTAIN PERSONS UNDER CONDITIONS DEROGATING FROM THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS IS OF DIRECT AND INDIVIDUAL CONCERN TO THEM , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY , WHERE THE APPOINTING AUTHORITY HAS NO DISCRETION WITH REGARD TO ITS IMPLEMENTATION AND THE NUMBER AND THE IDENTITY OF THOSE WHO COULD BE AFFECTED BY IT WERE DEFINITIVELY DETERMINED AT THE TIME WHEN IT WAS ADOPTED .

3 . IN ALLOWING A PARTY TO PLEAD THE INAPPLICABILITY OF A REGULATION , ARTICLE 184 DOES NOT CREATE AN INDEPENDENT RIGHT OF ACTION ; SUCH A PLEA MAY ONLY BE RAISED INDIRECTLY IN PROCEEDINGS AGAINST AN IMPLEMENTING MEASURE , THE VALIDITY OF THE REGULATION BEING CHALLENGED IN SO FAR AS IT CONSTITUTES THE LEGAL BASIS OF THAT MEASURE .

4 . THE FACT THAT A LEGAL PERSON SUBJECT TO THE LAW OF A MEMBER STATE MAINTAINS CLOSE RELATIONS WITH THE COMMISSION AND IS LARGELY SUBJECT TO ITS CONTROL DOES NOT TRANSFORM IT INTO AN ADMINISTRATIVE UNIT OF THE COMMISSION , NOR DOES IT CONFER THE STATUS OF OFFICIALS OR SERVANTS OF THE COMMUNITIES ON ITS STAFF , SINCE THE CONDITIONS LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 1 OF THE STAFF REGULATIONS OF OFFICIALS ARE NOT FULFILLED WITH RESPECT TO THOSE STAFF .

5 . NEITHER THE BUDGET NOR A FORTIORI AN EXPLANATORY REMARK CAN BE SUBSTITUTED FOR THE RULES ADOPTED BY THE COMMUNITY LEGISLATIVE AUTHORITIES ; NOR ARE THEY BINDING ON THOSE AUTHORITIES .

6 . A RESOLUTION OF THE PARLIAMENT IS NOT BINDING AND CANNOT GIVE RISE TO THE LEGITIMATE EXPECTATION THAT THE INSTITUTIONS WILL COMPLY WITH IT .

Parties

IN JOINED CASES 87 AND 130/77 , 22/83 , 9 AND 10/84

VITTORIO SALERNO , FORMERLY A MEMBER OF THE STAFF EMPLOYED AT THE HEADQUARTERS OF THE EUROPEAN ASSOCIATION FOR COOPERATION , WHO DIED ON 24 APRIL 1984 AND WHO IS NOW REPRESENTED BY ENRICO MARIA SALERNO , RESIDING AT 7 SQUARE CHARLES MAURICE WISER , ETTERBEEK , TERESA DANIELA SALERNO AND MARIA ADELE SALERNO , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , 272 AVENUE BRUGMANN , UCCLE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT , CENTRE LOUVIGNY , 34 B IV RUE PHILIPPE-II ,

( CASE 87/77 ),

YVETTE PRACHAZAL ( NEE ANE ),

FRANCOIS BETTENDORF ,

GABRIELLE BOISSIN ,

MARGARET BOLAND ,

JAN BOS ,

WALTER BUEKENHOUDT ,

ELZA DE COSTER ,

ELIANE DE RUETTE ,

MARCEL DEVOLDER ,

LILIANE AIGRET ( NEE DUSSAUSSOIS ),

MYFANWY ELLIS ,

LUIGI FERRI ,

LINO FRANCESCON ,

ARMANDE GILLARD ,

LAMBERT HAELDERMANS ,

DENISE PANZANI ( NEE LEWKOWITCH ),

GILBERT LHEMON ,

MARCEL LOUIS ,

HENRI MEHLEN ,

MYRIAM MERCIER ,

INGEBORG VATTUONE ( NEE NIJPELS ),

DEREK PULLINGER ,

HANNA SCHINKEL ,

PHILIPPE SCHIPHORST ,

INGRID CUYPERS ( NEE SIMONS ),

TATIANA BARAN ( NEE SOCOLOFF ),

ELISABETH VANDERLANDE AND

VINA VERRYCK ,

ALL FORMER MEMBERS OF THE STAFF EMPLOYED AT THE HEADQUARTERS OF THE EUROPEAN ASSOCIATION FOR COOPERATION , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN OF THE BRUSSELS BAR , 68 RUE CAMILLE LEMONNIER , 1060 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , AVOCAT , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE

( CASE 130/77 ),

GABRIELLE BOISSIN ,

ELIANE DE RUETTE ,

MARCEL DEVOLDER ,

LILIANE AIGRET ( NEE DUSSAUSSOIS ),

GILBERT LHEMON ,

MARCEL LOUIS ,

MYRIAM MERCIER ,

YVETTE PRACHAZAL ( NEE ANE ),

VITTORIO SALERNO ,

INGRID CUYPERS ( NEE SIMONS ), AND

VINA VERRYCK

( CASE 22/83 )

GABRIELLE BOISSIN ,

ELIANE DE RUETTE ,

MARCEL DEVOLDER ,

LILIANE AIGRET ( NEE DUSSAUSSOIS ),

GILBERT LHEMON ,

MARCEL LOUIS ,

MYRIAM MERCIER ,

YVETTE PRACHAZAL ( NEE ANE ),

INGRID CUYPERS ( NEE SIMONS ), AND

VINA VERRYCK

( CASE 9/84 )

VITTORIO SALERNO

( CASE 10/84 )

ALL FORMER STAFF OF THE EUROPEAN ASSOCIATION FOR COOPERATION AND LIKEWISE REPRESENTED BY MR SLUSNY ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALAIN VAN SOLINGE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

AND ( IN CASE 22/83 )

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MR HOFF-NIELSEN , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR PABBRUWE , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD ADENAUER , KIRCHBERG ,

DEFENDANTS ,

Subject of the case

APPLICATION : IN CASES 87 AND 130/77 , FOR ANNULMENT OF ( 1 ) THE DECISION ADOPTED BY THE ADMINISTRATIVE BOARD OF THE EUROPEAN ASSOCIATION FOR COOPERATION ON 4 NOVEMBER 1976 ON ' AMENDMENTS TO THE SALARY SCHEME FOR SPECIAL CONTRACT STAFF AND HEADQUARTERS STAFF OF THE EAC ' AND ( 2 ) THE DECISION OF 28 JULY 1977 REJECTING THE COMPLAINT AGAINST THAT DECISION LODGED BY THE APPLICANTS ON 3 FEBRUARY 1977 , AND FOR A DECLARATION THAT STAFF EMPLOYED AT THE HEADQUARTERS OF THE EUROPEAN ASSOCIATION FOR COOPERATION HAVE THE STATUS OF OFFICIALS OR TEMPORARY SERVANTS ; IN CASE 22/83 , FOR ANNULMENT OF COUNCIL 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 , L 352 , P . 3 ), IN SO FAR AS THE REGULATION DID NOT PROVIDE THAT THE APPLICANTS ' APPOINTMENT AS OFFICIALS WAS TO COINCIDE WITH THE DATE ON WHICH THEY WERE RECRUITED BY THE EUROPEAN ASSOCIATION FOR COOPERATION ; IN CASES 9 AND 10/84 , FOR A DECLARATION THAT THE ABOVEMENTIONED REGULATION IS PARTIALLY INAPPLICABLE ,

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 7 JULY 1977 AND 27 OCTOBER 1977 RESPECTIVELY , VITTORIO SALERNO , A MEMBER OF THE HEADQUARTERS STAFF OF THE EUROPEAN ASSOCIATION FOR COOPERATION ( HEREINAFTER REFERRED TO AS ' THE EAC ' ) AND 28 OTHER MEMBERS OF THE EAC ' S HEADQUARTERS STAFF BROUGHT ACTIONS SEEKING , FIRSTLY , THE ANNULMENT OF THE EAC ADMINISTRATIVE BOARD ' S DECISION OF 4 NOVEMBER 1976 ON ' AMENDMENTS TO THE SALARY SCHEME FOR SPECIAL CONTRACT STAFF AND HEADQUARTERS STAFF OF THE EAC ' AND , SECONDLY , A DECLARATION THAT THE EAC ' S HEADQUARTERS STAFF HAVE BEEN COMMUNITY OFFICIALS SINCE THE DATE ON WHICH THEY WERE ENGAGED BY THE EAC ( CASES 87/77 AND 130/77 ).

2 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 FEBRUARY 1983 , 10 OF THE 28 APPLICANTS IN CASE 130/77 BROUGHT AN ACTION FOR THE ANNULMENT OF COUNCIL 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 , L 352 , P . 5 ), IN SO FAR AS THAT REGULATION DOES NOT PROVIDE THAT THE APPLICANTS ' APPOINTMENT AS OFFICIALS SHOULD TAKE EFFECT FROM THE DATE ON WHICH THEY WERE RECRUITED BY THE EAC ( CASE 22/83 ).

3 BY TWO APPLICATIONS LODGED AT THE COURT REGISTRY ON 9 JANUARY 1984 , VITTORIO SALERNO AND THE 10 APPLICANTS IN CASE 22/83 BROUGHT ACTIONS FOR A DECLARATION THAT REGULATION NO 3332/82 WAS INAPPLICABLE IN SO FAR AS IT DID NOT PROVIDE FOR THE APPOINTMENT OF THE HEADQUARTERS STAFF TO TAKE EFFECT FROM THE DATE ON WHICH THEY WERE RECRUITED BY THE EAC . ( CASES 9 AND 10/84 ).

A - BACKGROUND TO THE DISPUTE

I - LEGAL FRAMEWORK OF THE EAC

4 ALL THE APPLICANTS WERE EMPLOYED AT THE HEADQUARTERS OF THE EAC , AN INTERNATIONAL NON-PROFIT MAKING ASSOCIATION INCORPORATED UNDER BELGIAN LAW BY THE ROYAL DECREE OF 15 SEPTEMBER 1964 ( MONITEUR BELGE OF 3.10.1964 , P . 10536 ). ARTICLE 1 OF THE EAC STATUTE PROVIDED THAT THE EAC WAS CREATED ' IN ORDER TO FURTHER COOPERATION BETWEEN THE EUROPEAN COMMUNITIES AND THE DEVELOPING COUNTRIES AND THE TERRITORIES AND OVERSEAS DEPARTMENTS ASSOCIATED WITH SUCH COMMUNITIES . . . ' . THE SECOND PARAGRAPH OF ARTICLE 3 OF THE STATUTE PROVIDED THAT THE EAC WAS TO ' BE RESPONSIBLE UNDER ITS STATUTE AND THE VARIOUS CONVENTIONS CONCLUDED WITH THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR THE RECRUITMENT , PLACEMENT AND ADMINISTRATION OF PERSONS APPOINTED TO CARRY OUT TASKS IN THE FIELD OF COOPERATION , SCIENTIFIC AND TECHNICAL SUPERVISION AND THE ADMINISTRATION OF SCHOLARSHIPS GRANTED BY THE COMMUNITY ' . THOUGH ALL THE MEMBERS OF THE ADMINISTRATIVE BOARD OF THE EAC WERE TO BE COMMISSION OFFICIALS , THE DIRECTOR AND DEPUTY DIRECTOR WERE NOT TO BE IN ACTIVE EMPLOYMENT WITH AN INSTITUTION OF THE EUROPEAN COMMUNITIES ( ARTICLE 25 OF THE STATUTE ).

5 THE CONVENTIONS OF 13 JULY 1965 AND 4 JUNE 1974 CONCLUDED BETWEEN THE EAC AND THE COMMISSION , REFERRED TO IN ARTICLE 3 OF THE EAC STATUTE , ENTRUSTED THE EAC , INTER ALIA , WITH ' THE TASK OF RECRUITING AND ADMINISTERING COMMISSION DELEGATES AND OFFICIALS TO BE PLACED UNDER CONTRACT . . . IN ORDER TO CARRY OUT PROJECTS FINANCED BY THE EUROPEAN DEVELOPMENT FUND OR THE COMMISSION BUDGET . ( ARTICLE 1 OF THE CONVENTION OF 13 JULY 1965 ). THE COMMISSION AUTHORIZED THE EAC TO ' APPOINT AT THE PLACE WHERE IT HAS ITS SEAT THE OFFICIALS NEEDED TO ADMINISTER IT ' , TO SELECT ITS PERSONNEL AND LAY DOWN THE CONDITIONS UNDER WHICH SUCH PERSONNEL IS APPOINTED ( ARTICLES 2 AND 3 OF THE SAME CONVENTION ). IT IS ALSO CLEAR FROM THOSE CONVENTIONS THAT THE EAC OPERATED PRIMARILY ON THE INSTRUCTIONS AND UNDER THE CONTROL OF THE COMMISSION .

6 THE FINANCIAL PROTOCOL ON THE MANAGEMENT OF THE EAC ' S INCOME AND EXPENDITURE , ADOPTED ON 10 DECEMBER 1965 BY THE EAC ' S ADMINISTRATIVE BOARD , PROVIDED THAT EXPENDITURE INCURRED BY THE EAC WAS TO BE CHARGED TO THE BUDGET OF THE EUROPEAN DEVELOPMENT FUND . ESTIMATES OF EXPENDITURE WERE TO BE APPROVED EACH YEAR BY THE COMMISSION .

7 THE ADMINISTRATIVE PROTOCOL ON THE ORGANIZATION AND FUNCTIONING OF THE EAC , ALSO ADOPTED BY THE ADMINISTRATIVE BOARD , PROVIDED IN ARTICLE 2 THAT ' THE RECRUITMENT OF HEADQUARTERS STAFF AND THE SALARIES TO BE PAID SHALL BE APPROVED BY THE ADMINISTRATIVE BOARD OR BY THE EXECUTIVE MEMBER ' . ARTICLE 15 OF THE SAME PROTOCOL PROVIDED THAT , ' IN ORDER TO HARMONIZE AS COMPLETELY AS POSSIBLE THE FUNCTIONING OF THE ASSOCIATION WITH THAT OF THE COMMISSION DEPARTMENTS FOR WHICH IT PERFORMS RECRUITING AND MANAGEMENT DUTIES , THE PROVISIONS GOVERNING PUBLIC HOLIDAYS , WORKING HOURS AND LEAVE SHALL IN PRINCIPLE BE THE SAME AS THOSE APPLICABLE TO THE COMMISSION ' S DEPARTMENTS ' . HOWEVER , ACCORDING TO ARTICLE 20 OF THE SAID PROTOCOL , ' THE RULES GOVERNING THE REMUNERATION , ALLOWANCES AND OTHER BENEFITS . . . OF THE HEADQUARTERS STAFF SHALL BE DETERMINED BY THEIR CONTRACT IN THE FRAMEWORK OF THE APPLICABLE LEGAL PROVISIONS AND THE DECISIONS OF THE ADMINISTRATIVE BOARD OR THE EXECUTIVE MEMBER ' . FINALLY , THE INTERNAL REGULATION OF 14 DECEMBER 1971 ON THE ADMINISTRATIVE AND FINANCIAL STRUCTURE OF THE EAC PROVIDED THAT THE ADMINISTRATIVE RULES APPLICABLE TO THE STAFF WERE TO BE DETERMINED BY BELGIAN LAW , THE EAC STATUTE , THE ADMINISTRATIVE PROTOCOL . . . , GENERAL DECISIONS AND THE PROVISIONS OF THE INDIVIDUAL CONTRACT .

8 ALL THE APPLICANTS WERE ENGAGED BY THE EAC AND PERFORMED THEIR DUTIES ON THE BASIS OF THOSE PROVISIONS AND THEIR INDIVIDUAL CONTRACTS OF EMPLOYMENT .

II - THE MEASURES IN DISPUTE

9 ON 4 NOVEMBER 1976 , THE EAC ' S ADMINISTRATIVE BOARD ADOPTED THE ABOVEMENTIONED DECISION ON AMENDMENTS TO THE SALARY SCHEME FOR STAFF AT THE HEADQUARTERS OF THE EAC . UNDER THAT DECISION , THE EAC ALIGNED THE SALARY SCHEME FOR THE HEADQUARTERS STAFF , PARTICULARLY IN REGARD TO FAMILY AND EDUCATION ALLOWANCES , OTHER ALLOWANCES AND CONDITIONS OF LEAVE , WITH THAT APPLICABLE TO COMMISSION OFFICIALS . HOWEVER , THAT DECISION DID NOT MAKE THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES APPLICABLE TO THE HEADQUARTERS STAFF . CONSEQUENTLY , DIFFERENCES EXISTED BETWEEN THE RULES GOVERNING HOUSEHOLD ALLOWANCES AND PENSIONS APPLICABLE TO EAC STAFF AND THOSE APPLICABLE TO COMMUNITY OFFICIALS .

10 THE ENTRY INTO FORCE OF THE LOME CONVENTION ( OFFICIAL JOURNAL 1976 , L 25 , P . 1 ) ON 1 APRIL 1976 CONSIDERABLY ENLARGED THE GEOGRAPHICAL SCOPE AND THE VOLUME OF DEVELOPMENT AID AS WELL AS DIVERSIFYING AND IMPROVING COOPERATION . IT WAS FOR THAT REASON THAT , ON 9 MARCH 1978 , THE COMMISSION PROPOSED THAT THE COUNCIL ADOPT A REGULATION SETTING UP A EUROPEAN AGENCY FOR COOPERATION ( HEREINAFTER REFERRED TO AS ' THE AGENCY ' ). AS A RESULT OF THAT PROPOSAL , AND HAVING REGARD TO THE OPINION OF THE EUROPEAN PARLIAMENT , THE COUNCIL ADOPTED REGULATION NO 3245/81 OF 26 OCTOBER 1981 SETTING UP A EUROPEAN AGENCY FOR COOPERATION ( OFFICIAL JOURNAL , L 328 , P . 1 ).

11 THE AIM OF THE AGENCY IS TO ASSIST THE COMMISSION WITH A VIEW TO THE RECRUITMENT , INSTALLATION AND ADMINISTRATION OF STAFF PLACED AT THE DISPOSAL OF COMMISSION DELEGATIONS OR CALLED UPON TO UNDERTAKE TECHNICAL ASSISTANCE OR COOPERATION TASKS , WITH A VIEW TO THE LAYING DOWN OF RULES FOR ADMINISTERING LOCALLY RECRUITED STAFF AND WITH A VIEW TO PARTICIPATION IN THE EXECUTION OF THE PROGRAMMES FOR SCHOLARSHIPS AND TRAINEESHIPS ( ARTICLE 3 OF REGULATION NO 3245/81 ).

12 ARTICLE 14 OF THE REGULATION PROVIDES THAT ' THE GENERAL TERMS OF RECRUITMENT AND OF EMPLOYMENT AND THE GENERAL SYSTEM OF REMUNERATION , ALLOWANCES AND ADDITIONAL PAYMENTS . . . FOR THE STAFF OF THE AGENCY ' S HEADQUARTERS SHALL BE DETERMINED BY SPECIFIC PROVISIONS ADOPTED BY THE COMMISSION . . . ' .

13 THE AGENCY IS NOT YET OPERATIONAL , IT AS YET HAS NO STAFF AND THE PROVISIONS REFERRED TO IN ARTICLE 14 HAVE NOT YET BEEN ADOPTED . CONSEQUENTLY , THE EAC HAS NOT YET BEEN DISSOLVED .

14 IN VIEW OF THE FACT THAT REGULATION NO 3245/81 HAD SET UP THE AGENCY FOR THE PURPOSE OF TAKING OVER THE ACTIVITIES PREVIOUSLY CARRIED ON BY THE EAC , THE COUNCIL ALSO ADOPTED REGULATION NO 3332/82 OF 3 DECEMBER 1982 . ARTICLE 1 OF THE LATTER REGULATION PROVIDES THAT ' A STAFF MEMBER WHO OCCUPIES A POST AT THE HEADQUARTERS OF THE ASSOCIATION ON 1 JANUARY 1982 AND WHO MAY STILL OCCUPY A POST THERE AT THE DATE OF ENTRY INTO FORCE OF THIS REGULATION MAY BE APPOINTED A PROBATIONER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES AND ASSIGNED TO ONE OF THE POSTS INDICATED FOR THAT PURPOSE IN THE COMMISSION ESTABLISHMENT PLAN FOR THE FINANCIAL YEAR 1982 ' . ACCORDING TO ARTICLE 2 OF THE REGULATION , ' THE APPOINTMENT . . . SHALL BE CARRIED OUT BY WAY OF DEROGATION FROM THE SECOND AND THIRD PARAGRAPHS OF ARTICLE 4 , ARTICLE 28 ( D ) AND ARTICLE 29 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ' . ARTICLE 3 OF THE REGULATION PROVIDES THAT , ' BY WAY OF DEROGATION FROM ARTICLES 31 AND 32 OF THE STAFF REGULATIONS , OFFICIALS RECRUITED BY VIRTUE OF THIS REGULATION SHALL BE APPOINTED TO THE APPROPRIATE GRADE AND STEP INDICATED IN THE TABLE OF EQUIVALENCE IN THE ANNEX . SENIORITY IN GRADE SHALL BE RECKONED FROM THE DATE OF APPOINTMENT AS A PROBATIONER OFFICIAL . SENIORITY IN STEP SHALL BE THAT ACQUIRED BY THE SAID OFFICIAL IN THE SERVICE OF THE ASSOCIATION ' .

15 ALL THE APPLICANTS EXCEPT MR SALERNO WERE APPOINTED ON 10 MARCH 1983 AS PROBATIONARY OFFICIALS OF THE COMMISSION WITH EFFECT FROM 1 JANUARY 1983 , UNDER THE PROVISIONS OF REGULATION NO 3332/82 .

16 BEFORE THEIR APPOINTMENT , ALL THE HEADQUARTERS STAFF WERE REQUIRED TO UNDERGO A MEDICAL EXAMINATION . IN MR SALERNO ' S CASE , THE COMMISSION INFORMED HIM THAT IT CONSIDERED THAT HE WAS NOT PHYSICALLY FIT TO PERFORM HIS DUTIES WITH THE COMMISSION . HE WAS SUBSEQUENTLY INFORMED THAT HIS CASE HAD BEEN SUBMITTED TO A MEDICAL COMMITTEE UNDER ARTICLE 33 OF THE STAFF REGULATIONS ; HOWEVER , HE DIED BEFORE THAT COMMITTEE HAD HAD AN OPPORTUNITY TO CONSIDER HIS CASE .

17 THE ACTIONS ARE DIRECTED AGAINST THE DECISION OF THE EAC ' S ADMINISTRATIVE BOARD OF 4 NOVEMBER 1976 AND AGAINST REGULATION NO 3332/82 . HOWEVER , THE PRINCIPAL PURPOSE OF THE ACTIONS IS TO OBTAIN A DECLARATION FROM THE COURT THAT THE APPLICANTS , BEING MEMBERS OF THE EAC ' S STAFF , HAVE BEEN OFFICIALS OF THE COMMISSION OR , IN THE ALTERNATIVE , MEMBERS OF ITS TEMPORARY STAFF SINCE THE DATE ON WHICH THEY WERE RECRUITED BY THE EAC .

18 IN THEIR COMPLAINT SUBMITTED TO THE COMMISSION ON 3 FEBRUARY 1977 , THE APPLICANTS SOUGHT , ON THE ONE HAND , THE ANNULMENT OF THE DECISION OF 4 NOVEMBER 1976 AND , ON THE OTHER HAND , RECOGNITION BY THE COMMISSION THAT THEY HAD BEEN OFFICIALS OR MEMBERS OF THE TEMPORARY STAFF SINCE THE DATE ON WHICH THEY HAD BEEN RECRUITED BY THE EAC . THE COMMISSION REJECTED THAT COMPLAINT ON THE GROUND THAT NO DIRECT OR INDIRECT HIERARCHICAL RELATIONSHIP EXISTED BETWEEN THE APPLICANTS AND THE COMMISSION .

19 IN ORDER TO SAFEGUARD THEIR RIGHTS , THE APPLICANTS IN CASES 9 AND 10/84 SUBMITTED A COMPLAINT ON 8 JUNE 1983 IN WHICH THEY CLAIMED THAT REGULATION NO . 3332/82 WAS NULL AND INAPPLICABLE . THE COMMISSION TOOK NOTE OF THAT COMPLAINT .

20 BY ORDERS OF 12 APRIL 1978 AND 5 OCTOBER 1983 , THE COURT DECIDED TO JOIN CASES 87 AND 130/77 AND CASE 22/83 . AFTER THE CLOSURE OF THE ORAL PROCEDURE , IT ALSO DECIDED , AT THE REQUEST OF THE APPLICANTS AND AFTER HEARING THE VIEWS OF THE COMMISSION AND THE ADVOCATE GENERAL , TO JOIN CASES 9 AND 10/84 TO THE OTHER THREE CASES FOR THE PURPOSES OF THE JUDGMENT .

B - ADMISSIBILITY OF THE APPLICATIONS

21 THE COMMISSION RAISED OBJECTIONS OF INADMISSIBILITY IN CASES 87 AND 130/77 . THE COURT DECIDED TO RESERVE ITS DECISION ON THOSE OBJECTIONS FOR THE FINAL JUDGMENT . THE ADMISSIBILITY OF THE APPLICATIONS HAS ALSO BEEN CHALLENGED IN CASE 22/83 ( BY THE COUNCIL ) AND CASES 9 AND 10/84 ( BY THE COMMISSION ). CONSEQUENTLY , THE COURT MUST NOW CONSIDER THE QUESTION OF ADMISSIBILITY IN ALL THE CASES .

I - CASES 87 AND 130/77

22 THE COMMISSION CONTESTS THE ADMISSIBILITY OF THE APPLICATIONS ON FOUR GROUNDS . IT CONTENDS FIRSTLY THAT THE EAC CONSTITUTES AN ENTITY SEPARATE AND DISTINCT FROM THE COMMISSION . SECONDLY , IT CONTENDS THAT , SINCE THE DECISION OF THE EAC ' S ADMINISTRATIVE BOARD WAS MERELY CONFIRMATION OF A PRE-EXISTING LEGAL SITUATION FLOWING FROM THE CONTRACTS OF EMPLOYMENT CONCLUDED BY THE APPLICANTS , THEY ARE NOT ADVERSELY AFFECTED BY IT . FURTHERMORE , THE COMMISSION STATES THAT , IN APPOINTING THE APPLICANTS , IT MUST OBSERVE THE REQUIREMENTS LAID DOWN IN THE STAFF REGULATIONS . FINALLY , EVEN IF THOSE REQUIREMENTS WERE MET , THIS WOULD NOT GIVE RISE TO A RIGHT WHICH THE COURT COULD ENFORCE BY ORDERING THE COMMISSION TO APPOINT OR ENGAGE THE APPLICANTS .

23 ACCORDING TO THE APPLICANTS , ON THE OTHER HAND , THE EAC IS AN ADMINISTRATIVE UNIT OF THE COMMISSION . SINCE THEY CLAIM TO BE OFFICIALS , THEY HAVE A RIGHT OF ACCESS TO THE COURT . MOREOVER , THE CONTESTED DECISION CONTAINS SOME NEW FACTORS . THEIR APPLICATION MERELY SEEKS A JUDICIAL DECLARATION ; AND ITS IMPLEMENTATION IS A TASK FOR THE COMMISSION ALONE .

24 IT SHOULD BE NOTED FIRSTLY IN THAT REGARD THAT 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 ( JUDGMENT OF 5 APRIL 1979 IN CASE 116/78 , BELLINTANI V COMMISSION , ( 1979 ) ECR 1585 ).

25 SINCE THE APPLICANTS ARE SEEKING A DECLARATION THAT THEY HAVE BEEN OFFICIALS OF THE COMMISSION SINCE THEIR ENGAGEMENT BY THE EAC , THEIR ACTIONS AGAINST THE DECISION OF 4 NOVEMBER 1976 , IMPLIEDLY REFUSING TO APPLY THE STAFF REGULATIONS OF OFFICIALS TO THEM AND THEREBY ADVERSELY AFFECTING THEM , ARE ADMISSIBLE .

II - CASE 22/83

26 THE COUNCIL CONTENDS FIRSTLY THAT REGULATION NO 3332/82 IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS . IT CONSIDERS THAT THE REGULATION IS OF A LEGISLATIVE CHARACTER , APPLYING TO OBJECTIVELY DETERMINED SITUATIONS AND HAVING GENERAL AND ABSTRACT LEGAL EFFECTS . ACCORDING TO THE JUDGMENT OF THE COURT OF 25 MARCH 1982 ( CASE 45/81 , MOKSEL V COMMISSION , ( 1982 ) ECR 1129 ), A SINGLE PROVISION CANNOT AT ONE AND THE SAME TIME BE A MEASURE OF GENERAL APPLICATION AND AN INDIVIDUAL MEASURE . SINCE THE REGULATION IS OF A LEGISLATIVE CHARACTER , THE COUNCIL CONSIDERS THAT THAT IS SUFFICIENT TO DECLARE THE APPLICATION INADMISSIBLE .

27 THE APPLICANTS EMPHASIZE THAT THE REGULATION IN QUESTION IS NOT OF A LEGISLATIVE CHARACTER OR OF GENERAL APPLICATION , BUT IS A PARTICULAR APPLICATION OF A DECISION TO INCORPORATE INTO THE STAFF OF THE COMMISSION THE 56 HEADQUARTERS STAFF MENTIONED BY NAME . IT HAS INDIVIDUAL EFFECT BECAUSE IT IS DIRECTED SOLELY AT THOSE 56 INDIVIDUALS .

28 IN ORDER TO RESOLVE THAT QUESTION , IT MUST BE NOTED FIRSTLY THAT THE APPLICATION IS ONLY ADMISSIBLE IF REGULATION NO 3332/82 IS TO BE REGARDED AS A DECISION WHICH , ALTHOUGH ADOPTED IN THE GUISE OF A REGULATION , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

29 AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 26 FEBRUARY 1981 ( CASE 64/80 , GIUFFRIDA AND CAMPOGRANDE V COUNCIL , ( 1981 ) ECR 693 ), THE TEST FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS TO ASCERTAIN WHETHER OR NOT THE MEASURE IN QUESTION HAS GENERAL APPLICATION .

30 IT IS NOT DISPUTED THAT REGULATION NO 3332/82 WAS ADOPTED FOR THE SOLE PURPOSE OF RECRUITING THE 56 MEMBERS OF THE EAC ' S HEADQUARTERS STAFF WHO OCCUPIED POSTS ON 1 JANUARY 1982 AND WHO WERE STILL EMPLOYED THERE ON 15 DECEMBER 1982 ( THAT IS TO SAY , THE DAY FOLLOWING PUBLICATION OF THE REGULATION IN THE OFFICIAL JOURNAL ). WHEN THE REGULATION WAS ADOPTED , THE NUMBER AND THE IDENTITY OF THOSE WHO COULD BE AFFECTED BY IT WERE DEFINITIVELY DETERMINED . THE REGULATION IS THUS NOT OF GENERAL APPLICATION BUT MUST BE REGARDED AS A SERIES OF DECISIONS ADOPTED BY THE COUNCIL CONCERNING EACH OF THE 56 MEMBERS OF THE EAC ' S HEADQUARTERS STAFF INDIVIDUALLY .

31 WITH REGARD TO THE QUESTION WHETHER THE REGULATION AT ISSUE IS OF DIRECT CONCERN TO THE APPLICANTS , IT SHOULD BE BORNE IN MIND THAT ARTICLE 3 OF THE REGULATION PROVIDES THAT THE HEADQUARTERS STAFF RECRUITED BY VIRTUE OF THE REGULATION ARE TO BE APPOINTED TO THE APPROPRIATE GRADE AND STEP INDICATED IN THE TABLE OF EQUIVALENCE IN THE ANNEX TO THE REGULATION . IT IS CLEAR FROM THAT PROVISION THAT THE APPOINTING AUTHORITY HAS NO DISCRETION WITH REGARD TO THE GRADING OF THE PERSONS CONCERNED .

32 IN THOSE CIRCUMSTANCES , REGULATION NO . 3332/82 IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS AND THEREFORE THEIR ACTIONS ARE ADMISSIBLE .

III - CASES 9 AND 10/84

33 THE COMMISSION STATES FIRSTLY THAT THE APPLICANTS ARE NOT CHALLENGING THE INDIVIDUAL MEASURES ESTABLISHING THEM AS OFFICIALS OR , IN CASE 10/84 , REFUSING SUCH ESTABLISHMENT . THE PLEA THAT A REGULATION IS INAPPLICABLE IS NOT AN INDEPENDENT RIGHT OF ACTION ; IT MAY BE RAISED ONLY BY WAY OF AN OBJECTION . FINALLY , AN ACTION BROUGHT BY OFFICIALS AGAINST THE COMMISSION MUST BE BROUGHT AGAINST THE APPOINTING AUTHORITY AND THE ACT ADVERSELY AFFECTING THE OFFICIAL MUST BE AN ACT OF THAT AUTHORITY .

34 ACCORDING TO THE APPLICANTS , THE PURPOSE OF ARTICLE 184 OF THE TREATY IS TO GIVE THEM A SECOND CHANCE , AND THEIR APPLICATIONS ARE FOR THAT REASON ADMISSIBLE . MOREOVER , IN THEIR COMPLAINTS , THEY ' IMMEDIATELY ' CLAIMED THAT REGULATION NO 3332/82 WAS VOID AND , IN ANY EVENT , INAPPLICABLE ON THE BASIS OF ARTICLES 179 AND 184 OF THE TREATY . FINALLY , WHEN THEY APPLIED TO HAVE THEIR APPLICATIONS IN THESE CASES JOINED TO THOSE IN CASES 87 AND 130/77 , THEY IMPLIEDLY BUT NONE THE LESS CLEARLY REFERRED TO THEIR CONCLUSIONS IN THOSE CASES . THERE CAN THEREFORE BE NO DOUBT THAT THEIR COMPLAINT IS THAT THE COMMISSION DID NOT APPOINT THEM WITH RETROACTIVE EFFECT .

35 IN ORDER TO RESOLVE THIS QUESTION , IT MUST BE BORNE IN MIND THAT ACCORDING TO ARTICLE 184 , ' NOTWITHSTANDING THE EXPIRY OF THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173 , ANY PARTY MAY , IN PROCEEDINGS IN WHICH A REGULATION OF THE COUNCIL OR OF THE COMMISSION IS IN ISSUE , PLEAD THE GROUNDS SPECIFIED IN THE FIRST PARAGRAPH OF ARTICLE 173 , IN ORDER TO INVOKE BEFORE THE COURT OF JUSTICE THE INAPPLICABILITY OF THAT REGULATION ' .

36 IT FOLLOWS THAT THE SOLE PURPOSE OF ARTICLE 184 IS TO PROTECT PARTIES AGAINST THE APPLICATION OF AN UNLAWFUL REGULATION WHERE THE REGULATION ITSELF CAN NO LONGER BE CHALLENGED OWING TO THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 173 . HOWEVER , IN ALLOWING A PARTY TO PLEAD THE INAPPLICABILITY OF A REGULATION , ARTICLE 184 DOES NOT CREATE AN INDEPENDENT RIGHT OF ACTION ; SUCH A PLEA MAY ONLY BE RAISED INDIRECTLY IN PROCEEDINGS AGAINST AN IMPLEMENTING MEASURE , THE VALIDITY OF THE REGULATION BEING CHALLENGED IN SO FAR AS IT CONSTITUTES THE LEGAL BASIS OF THAT MEASURE .

37 THE APPLICANTS HAVE NOT BROUGHT THEIR ACTIONS AGAINST THEIR APPOINTMENT AS OFFICIALS OR ( IN CASE 10/84 ) THE REFUSAL TO MAKE SUCH AN APPOINTMENT . IT WAS ONLY IN THEIR REPLIES THAT THEY EXTENDED THE SCOPE OF THEIR ACTIONS TO THE APPOINTMENTS . SINCE , UNDER ARTICLE 38 ( 1 ) ( C ) OF THE RULES OF PROCEDURE , THE SUBJECT-MATTER OF THE DISPUTE IS TO BE STATED IN THE APPLICATION , SUCH AN EXTENSION IS OUT OF TIME . THE APPLICATIONS SEEKING A DECLARATION THAT REGULATION NO 3332/82 IS INAPPLICABLE ARE THEREFORE INADMISSIBLE .

C - SUBSTANCE OF THE CASE

I - CASES 87 AND 130/77

38 THE APPLICANTS CLAIM ESSENTIALLY THAT , ON THE ONE HAND , THEY HAVE BEEN COMMUNITY OFFICIALS SINCE THEY WERE ENGAGED BY THE EAC BECAUSE THE LATTER IS NO MORE THAN AN ADMINISTRATIVE UNIT OF THE COMMISSION AND , ON THE OTHER HAND , THEY WERE IN AN IDENTICAL POSITION TO THAT OF OFFICIALS OR MEMBERS OF THE TEMPORARY STAFF OF THE COMMISSION AND SHOULD THEREFORE HAVE BEEN TREATED IN THE SAME WAY AS SUCH OFFICIALS OR STAFF . SINCE THE THREE SUBMISSIONS OF LAW PUT FORWARD IN ORDER TO CONTEST THE ADMINISTRATIVE BOARD ' S DECISION ARE BASED UPON THOSE TWO ARGUMENTS , THEY MUST BE CONSIDERED FIRST .

FIRST ARGUMENT

39 THE APPLICANTS CLAIM THAT THE EAC DOES NOT FULFIL THE REQUIREMENTS LAID DOWN BY THE BELGIAN LEGISLATION ON INTERNATIONAL ASSOCIATIONS . THEY ALSO MAINTAIN THAT THE EAC DOES NOT HAVE ANY FUNDS OF ITS OWN AND ITS RUNNING COSTS ARE PAID FOR OUT OF THE COMMISSION ' S BUDGET . THE FICTITIOUS CHARACTER OF THE EAC IS CLEAR FROM THE FACT THAT IT IS INCLUDED IN THE COMMISSION ' S ESTABLISHMENT PLAN OF POSTS AND FROM THE FACT THAT ITS ADMINISTRATIVE BOARD IS ENTIRELY COMPOSED OF COMMISSION OFFICIALS . THE APPLICANTS CONCLUDE FROM OTHER FACTORS THAT THE EAC IS AN INTEGRAL PART OF THE COMMISSION HIERARCHY , A CONCLUSION THAT IS CONFIRMED BY INTERNAL MEMORANDA DRAFTED BY COMMISSION OFFICIALS . FINALLY , THE EUROPEAN PARLIAMENT , IN ITS REPORT OF 28 JUNE 1977 , CALLED FOR THE ' RE-INTEGRATION ' OF THE EAC INTO THE CENTRAL ADMINISTRATIVE AND BUDGETARY STRUCTURE OF THE COMMISSION .

40 THE COMMISSION STATES THAT THE SUBSIDY WHICH IT PAYS TO THE EAC COVERS ONLY 5% OF THE EAC ' S TOTAL BUDGET . ITS REMAINING EXPENDITURE IS FINANCED BY THE EUROPEAN DEVELOPMENT FUND . NEITHER THE FACT THAT THE EAC IS MENTIONED IN THE COMMISSION ' S ESTABLISHMENT PLAN NOR THE COMPOSITION OF THE ADMINISTRATIVE BOARD NOR ANY OTHER FACTOR PROVES THAT THE EAC IS PART OF THE COMMISSION ' S HIERARCHY . MOREOVER , WHILST IT IS TRUE THAT IN THE VIEW OF THE EUROPEAN PARLIAMENT THE COMMISSION SHOULD NOT MAKE USE OF THE SERVICES OF EXTERNAL BODIES , THAT DOES NOT CONSTITUTE PROOF THAT THE EAC IS AN ADMINISTRATIVE UNIT OF THE COMMISSION .

41 BEFORE DEALING WITH THIS QUESTION , IT IS FIRST NECESSARY TO MAKE THE FOLLOWING OBSERVATION CONCERNING THE LEGAL PERSONALITY OF THE EAC : THE EAC WAS SET UP UNDER BELGIAN LEGISLATION AS AN INTERNATIONAL NON-PROFIT MAKING ASSOCIATION AND WAS INCORPORATED BY ROYAL DECREE . IT IS THEREFORE FOR THE NATIONAL COURT TO DECIDE WHETHER ITS FORMATION AND FUNCTIONING COMPLY WITH THE CRITERIA LAID DOWN BY THAT LEGISLATION .

42 WITH REGARD MORE PARTICULARLY TO THE APPLICANTS ' ARGUMENT THAT THEY HAVE BEEN OFFICIALS OR SERVANTS OF THE COMMISSION SINCE THEY WERE ENGAGED BY THE EAC , IT MUST BE POINTED OUT THAT THE FIRST PARAGRAPH OF ARTICLE 1 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES PROVIDES THAT ' ' ' OFFICIAL OF THE COMMUNITIES ' MEANS ANY PERSON WHO HAS BEEN APPOINTED , AS PROVIDED FOR IN THESE STAFF REGULATIONS , TO AN ESTABLISHED POST ON THE STAFF OF ONE OF THE INSTITUTIONS OF THE COMMUNITIES BY AN INSTRUMENT ISSUED BY THE APPOINTING AUTHORITY OF THAT INSTITUTION ' .

43 CONTRARY TO WHAT IS REQUIRED BY THAT PROVISION , EACH OF THE APPLICANTS WAS ENGAGED BY THE EAC ON THE BASIS OF A CONTRACT OF EMPLOYMENT CONCLUDED BETWEEN HIMSELF AND THE EAC . THAT CONTRACT IS GOVERNED BY BELGIAN LAW , THE EAC ' S STATUTE , THE EAC ' S ADMINISTRATIVE PROTOCOL OF 26 JULY 1966 , THE IMPLEMENTING DECISIONS ADOPTED BY ITS MANAGEMENT AND THE PROVISIONS OF THE INDIVIDUAL CONTRACT . WHILE IT IS TRUE THAT THE APPLICANTS ' ENGAGEMENT HAD TO HAVE THE PRIOR APPROVAL OF THE COMMISSION , THAT DOES NOT ALTER THE FACT THAT THE EMPLOYER WAS THE EAC AND NOT A COMMUNITY INSTITUTION .

44 THE VARIOUS FACTUAL ARGUMENTS PUT FORWARD BY THE APPLICANTS WITH REGARD TO THE LEGAL PERSONALITY OF THE EAC ARE NOT SUCH AS TO ALLOW THE EAC TO BE ASSIMILATED TO A COMMUNITY INSTITUTION , IN THIS CASE , AN ADMINISTRATIVE UNIT OF THE COMMISSION . IT MUST BE BORNE IN MIND FIRSTLY , THAT IN 1964 THE ORGANIZING OF ECONOMIC COOPERATION WITH THE DEVELOPING COUNTRIES DID NOT YET CONSTITUTE A MAJOR TASK FOR THE COMMISSION . THUS , AT THAT TIME , IT WAS PERFECTLY REASONABLE TO ENTRUST RESPONSIBILITY IN THAT MATTER TO AN ASSOCIATION SET UP UNDER PRIVATE LAW WHICH , AS SUCH , WAS IN A POSITION TO ACT WITH GREATER FLEXIBILITY .

45 WITH REGARD TO THE CLAIM THAT THE EAC HAS NO FUNDS OF ITS OWN , IT IS SUFFICIENT TO REFER TO THE PROVISIONS GOVERNING ITS INCOME AND EXPENDITURE CONTAINED IN ARTICLES 28 TO 30 OF ITS STATUTE AND IN ARTICLES 12 TO 19 OF THE CONVENTION OF 13 JULY 1965 CONCLUDED BETWEEEN THE COMMISSION AND THE EAC . IT IS CLEAR FROM ALL OF THOSE PROVISIONS THAT THE EAC ' S INCOME IS MADE UP OF SUBSCRIPTIONS FROM ITS MEMBERS , ADVANCES MADE BY THE EUROPEAN DEVELOPMENT FUND AND OTHER REVENUES , AND THAT CERTAIN INCOME MAY EVEN BE EMPLOYED WITHOUT PRIOR AUTHORIZATION EITHER OF THE COMMISSION OR OF THE EUROPEAN DEVELOPMENT FUND . UNDER THOSE CIRCUMSTANCES , IT CANNOT SERIOUSLY BE ARGUED THAT THE EAC DOES NOT POSSESS FUNDS OF ITS OWN .

46 THE INCLUSION OF THE EAC IS INCLUDED IN THE COMMISSION ' S ESTABLISHMENT PLAN , THE INTERNAL MEMORANDA DRAFTED BY THE COMMISSION ' S OFFICIALS AND THE PARLIAMENT ' S REPORT OF 28 JUNE 1977 , WHICH ' COMMITS THE COMMISSION TO REINTEGRATE THE EUROPEAN ASSOCIATION FOR COOPERATION INTO THE CENTRAL ADMINISTRATIVE AND BUDGETARY STRUCTURES OF THE COMMISSION ' , IN NO WAY PROVE THAT THE EAC IS AN ADMINISTRATIVE UNIT OF THE COMMISSION . ON THE CONTRARY , THEY SHOW THE CONCERN ON THE PART OF THE COMMISSION AND ON THE PART OF THE PARLIAMENT TO BRING THE EAC CLOSER TO , AND EVEN TO ABSORB IT INTO , THE COMMISSION WITHIN A SHORT TIME . HOWEVER , THAT PRESUPPOSES THAT THE EAC IS AN INDEPENDENT BODY NOT YET INTEGRATED INTO THE COMMISSION ' S DEPARTMENTS .

47 THE APPLICANTS ' ARGUMENT THAT THEY HAVE BEEN OFFICIALS OR SERVANTS OF THE COMMUNITIES SINCE THE DATE ON WHICH THEY ENTERED THE SERVICE OF THE EAC , BECAUSE THE LATTER WAS MERELY AN ADMINISTRATIVE UNIT OF THE COMMISSION , MUST THEREFORE BE REJECTED .

SECOND ARGUMENT

48 WITH REGARD TO THE ARGUMENT THAT THE APPLICANTS WERE IN AN IDENTICAL SITUATION TO THAT OF OFFICIALS OR MEMBERS OF THE TEMPORARY STAFF OF THE COMMUNITIES , THE APPLICANTS CLAIM THAT THEY WERE ENGAGED IN THE NAME AND ON BEHALF OF THE COMMISSION AND THAT , FURTHERMORE , CERTAIN MEMBERS OF STAFF RECEIVED THEIR OFFERS OF EMPLOYMENT ON THE COMMISSION ' S HEADED NOTEPAPER . THE CONDITIONS OF RECRUITMENT WERE THOSE LAID DOWN IN THE STAFF REGULATIONS OF OFFICIALS ( FOR EXAMPLE , PRIOR MEDICAL EXAMINATION ), AS WERE THE WORKING CONDITIONS AND THE FINANCIAL AND TAX ARRANGEMENTS , THE ONLY EXCEPTION BEING THE HOUSEHOLD ALLOWANCE . THE EAC MADE A DEDUCTION AT THE RATE APPLICABLE FOR COMMUNITY TAX BUT PAID NATIONAL TAX ON BEHALF OF ITS STAFF . FINALLY , THEY ALLEGE THAT IT IS CLEAR FROM THE ASSURANCES GIVEN BY THE COMMISSION ' S OFFICIALS THAT THE EAC ' S HEADQUARTERS STAFF WERE AN INTEGRAL PART OF THE COMMISSION .

49 THE COMMISSION OBSERVES THAT THE APPLICANTS WERE ENGAGED BY THE EAC AND THAT THEY NEITHER WERE UNDER THE AUTHORITY OF , NOR RECEIVED INSTRUCTIONS FROM , THE COMMISSION . IT IS CERTAINLY TRUE THAT THE WORKING CONDITIONS AND REMUNERATION ARE ALMOST IDENTICAL , BUT THAT DOES NOT ALTER THE FACT THAT THE RULES GOVERNING THE EAC HEADQUARTERS STAFF WERE FIXED BY THE EAC ITSELF . WITH REGARD TO TAXATION , PAYMENT BY THE EAC OF NATIONAL TAXES ON BEHALF OF ITS STAFF DOES NOT TRANSFORM THE EXISTING EMPLOYMENT RELATIONSHIPS INTO EMPLOYMENT RELATIONSHIPS BETWEEN THE EAC ' S STAFF AND THE COMMISSION . WITH REGARD TO THE ASSURANCES REFERRED TO , THE COMMISSION REPLIES THAT THE ALLEGED STATEMENTS HAVE NO LEGAL VALUE .

50 THIS SECOND ARGUMENT MUST ALSO BE REJECTED . THE CIRCUMSTANCES REFERRED TO SHOW THE DEGREE TO WHICH THE POLICY OF THE EAC AND THE COMMISSION DESIGNED TO PLACE THE EAC ' S STAFF ON THE SAME FOOTING AS THE COMMISSION ' S OFFICIALS AND OTHER SERVANTS WAS SUCCESSFUL . THOSE CIRCUMSTANCES DO NOT HOWEVER 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 . THE APPLICANTS HAVE FAILED TO PRODUCE ANY CONVINCING EVIDENCE THAT THEY WERE APPOINTED BY A WRITTEN INSTRUMENT ISSUED BY THE APPOINTING AUTHORITY ' IN THE NAME AND ON BEHALF OF THE COMMISSION ' IN ACCORDANCE WITH THE RECRUITMENT PROVISIONS IN THE STAFF REGULATIONS OF OFFICIALS . ON THE CONTRARY , THE ABOVEMENTIONED ADMINISTRATIVE PROTOCOL AND INTERNAL REGULATION CLEARLY SHOW THAT IT WAS THE EAC AND NOT THE COMMISSION WHICH WAS THE APPLICANTS ' EMPLOYER . WITH REGARD TO THE ASSURANCES ALLEGEDLY GIVEN BY THE COMMISSION ' S OFFICIALS , THEY COULD NOT , EVEN IF THEIR EXISTENCE WAS PROVEN , BE OF SUCH A NATURE AS TO BIND THE COMMISSION AND ARE THEREFORE TOTALLY DEVOID OF LEGAL VALUE .

51 THIS SECOND ARGUMENT THAT THE APPLICANTS ' SITUATION IS IDENTICAL TO THAT OF OFFICIALS AND OTHER SERVANTS OF THE COMMISSION MUST ALSO THEREFORE BE REJECTED .

II - CASE 22/83

52 THE APPLICANTS CHALLENGE REGULATION NO 3332/82 ON TWO GROUNDS : IN THE FIRST PLACE , IN REGULATION NO 3332/82 , THE COUNCIL , IN BREACH OF THE PRINCIPLE PATERE LEGEM QUAM IPSE FECISTI , FAILED TO REGARD THE DATE ON WHICH THE APPLICANTS ENTERED THE SERVICE OF THE EAC AS THE DATE ON WHICH THEY WERE APPOINTED AS OFFICIALS . SECONDLY , THE APPLICANTS COULD LEGITIMATELY EXPECT THEIR APPOINTMENT ON THE BASIS OF REGULATION NO 3332/82 TO TAKE EFFECT RETROACTIVELY FROM THE DATE OF THEIR ENGAGEMENT BY THE EAC .

FIRST SUBMISSION

53 THE APPLICANTS OBSERVE THAT THE GENERAL BUDGET FOR 1982 , FOR WHICH THE COUNCIL WAS RESPONSIBLE , INCLUDED AN APPROPRIATION FOR THE EMPLOYMENT OF THE 56 MEMBERS OF THE HEADQUARTERS STAFF , TOGETHER WITH A REMARK TO THE EFFECT THAT ESTABLISHMENT OF THE EAC ' S HEADQUARTERS STAFF SHOULD DATE FROM THEIR ENGAGEMENT BY THAT ASSOCIATION . THE COUNCIL , IN REGULATION NO 3332/82 , DID NOT TAKE ACCOUNT OF THAT REMARK AND IS THEREFORE IN BREACH OF THE PRINCIPLE THAT IT MUST RESPECT ITS OWN DECISIONS . MOREOVER , THE COUNCIL IS ALSO BOUND BY ITS STATEMENT IN THE MINUTES OF THE MEETING DURING WHICH REGULATION NO 3245/81 WAS ADOPTED , TO THE EFFECT THAT IT WOULD ADOPT ' APPROPRIATE TRANSITIONAL MEASURES DESIGNED TO RESOLVE THE PROBLEMS RAISED BY THE HEADQUARTERS STAFF ' . MOREOVER , REGULATION NO 3332/82 WAS NOT NECESSARY BECAUSE THE COMMISSION COULD HAVE APPOINTED THE APPLICANTS UNDER THE PROVISIONS OF ARTICLE 14 OF REGULATION NO 3245/81 , SINCE THE POSTS WERE PROVIDED FOR IN THE 1982 BUDGET . REGULATION NO 3332/82 , WHICH RETREATED FROM THE POSITION ADOPTED BY THE COUNCIL IN ITS EARLIER DECISIONS , IS THEREFORE UNLAWFUL .

54 THE COUNCIL CONTENDS THAT THE AFOREMENTIONED REMARKS AND STATEMENTS ARE OF A POLITICAL CHARACTER AND FOR INTERNAL USE . THE INCLUSION OF AN APPROPRIATION IN THE BUDGET OF THE COMMUNITIES CONSTITUTES A NECESSARY BUT NOT A SUFFICIENT CONDITION FOR INCURRING EXPENDITURE . THE ADOPTION OF THE BUDGET CANNOT REPLACE THE COUNCIL ' S LEGISLATIVE POWER AND IN NO WAY AFFECTS THE NEED TO MAKE AN APPOINTMENT IN ACCORDANCE WITH THE RULES CONTAINED IN THE STAFF REGULATIONS . IT WAS SPECIFICALLY IN ORDER TO OVERCOME THE OBSTACLES POSED BY THE STAFF REGULATIONS THAT THE COUNCIL ADOPTED REGULATION NO 3332/82 . THERE IS NO INDICATION EITHER IN REGULATION NO 3245/81 OR IN THE STATEMENT IN THE MINUTES THAT THE STAFF CONCERNED ARE TO BE ESTABLISHED WITH RETROACTIVE EFFECT .

55 ON THIS QUESTION , IT MUST BE STATED FIRSTLY THAT REGULATION NO 3245/81 SET UP A NEW BODY , THE EUROPEAN AGENCY FOR COOPERATION , BUT IN NO WAY MODIFIED THE FACTUAL OR LEGAL POSITION OF THE APPLICANTS , WHO WERE EMPLOYEES OF THE EAC . CONSEQUENTLY , ARTICLE 14 OF THE REGULATION , WHICH PROVIDED INTER ALIA THAT THE GENERAL TERMS OF RECRUITMENT AND OF EMPLOYMENT OF THE AGENCY ' S HEADQUARTERS STAFF WERE TO BE DETERMINED BY SPECIFIC PROVISIONS ADOPTED BY THE COMMISSION , HAD NO DIRECT OR INDIRECT INFLUENCE ON THE APPLICANTS ' LEGAL POSITION . THAT IS ALSO TRUE OF THE COUNCIL ' S STATEMENT IN THE MINUTES WHICH IS RELIED ON BY THE APPLICANTS .

56 IT WAS THE PRESIDENT OF THE PARLIAMENT - AND NOT THE COUNCIL - WHO , PURSUANT TO THE PROVISIONS OF THE TREATY , DECLARED THAT THE GENERAL BUDGET OF THE COMMUNITIES FOR THE FINANCIAL YEAR 1982 ( OFFICIAL JOURNAL , L 31 OF 8.2.1982 , P . 1 ) DRAWN UP BY THE BUDGETARY AUTHORITY HAD BEEN FINALLY ADOPTED . TO THAT MUST BE ADDED THE FACT THAT NEITHER THE BUDGET NOR A FORTIORI AN EXPLANATORY REMARK , THOUGH NECESSARY IN ORDER TO UNDERTAKE EXPENDITURE , CAN BE SUBSTITUTED FOR THE PROVISIONS OF THE STAFF REGULATIONS DEALING WITH RECRUITMENT OF OFFICIALS . NOR ARE THEY BINDING ON THE COUNCIL OR THE COMMISSION AS LEGISLATIVE AUTHORITIES . THUS , WHEN IT ADOPTED REGULATION NO 3332/82 , THE COUNCIL DID NOT FAIL TO MEET ANY LEGAL OBLIGATION WHICH IT HAD IMPOSED ON ITSELF .

57 THE SUBMISSION THAT THE COUNCIL FAILED TO RESPECT THE RULES WHICH IT ITSELF HAD LAID DOWN MUST BE REJECTED .

SECOND SUBMISSION

58 WITH REGARD TO THEIR SUBMISSION THAT THEIR LEGITIMATE EXPECTATIONS WERE FRUSTRATED , THE APPLICANTS REFER TO THE RESOLUTION OF THE EUROPEAN PARLIAMENT OF 11 MAY 1979 EMBODYING THE OPINION OF THE EUROPEAN PARLIAMENT ON THE PROPOSAL FROM THE COMMISSION TO THE COUNCIL FOR A REGULATION RELATING TO THE CREATION OF A EUROPEAN AGENCY FOR COOPERATION ( OFFICIAL JOURNAL , C 140 , P . 142 ); ACCORDING TO THAT RESOLUTION , ' THE STAFF CONCERNED SHALL RETAIN THEIR ESTABLISHED RIGHTS ' AND ' THE NEW PROVISIONS SHALL APPLY RETROACTIVELY TO THE DAY OF THEIR ENGAGEMENT BY THE EUROPEAN ASSOCIATION FOR COOPERATION ' . FURTHERMORE , THE BUDGETARY AUTHORITY INSERTED A REMARK INTO THE BUDGET FOR THE 1982 FINANCIAL 1982 FINANCIAL YEAR TO THE EFFECT THAT ' THE POSTS FOR THE EUROPEAN ASSOCIATION FOR COOPERATION ( HEADQUARTERS ) ARE INCORPORATED IN THE COMMISSION ' S ESABLISHMENT PLAN IN ACCORDANCE WITH THE CONDITIONS SET OUT IN THE RESOLUTION ADOPTED BY THE EUROPEAN PARLIAMENT ON 11 MAY 1979 ' . IT WAS THEREFORE THE PARLIAMENT ' S WISH THAT THE HEADQUARTERS STAFF SHOULD BE ESTABLISHED RETROACTIVELY . THE APPLICANTS CLAIM THAT THEY COULD THEREFORE LEGITIMATELY EXPECT THAT THAT RESOLUTION AND THE AFOREMENTIONED REMARK OF THE BUDGETARY AUTHORITY , TOGETHER WITH THE STATEMENT MADE BY THE COUNCIL AT THE TIME THAT REGULATION NO 3245/81 WAS ADOPTED , WOULD BE RESPECTED .

59 CONTRARY TO THE APPLICANT ' S CLAIM , A RESOLUTION OF THE PARLIAMENT IS NOT BINDING AND CANNOT GIVE RISE TO THE LEGITIMATE EXPECTATION THAT THE INSTITUTIONS WILL COMPLY WITH IT . WITH REGARD TO THE REMARK IN THE BUDGET FOR THE 1982 FINANCIAL YEAR , IT CAN NEITHER CONFER INDIVIDUAL RIGHTS ON THE APPLICANTS NOR GIVE RISE TO ANY LEGITIMATE EXPECTATION ( SEE ORDER OF 26 SEPTEMBER 1984 IN CASE 216/83 , LES VERTS V COMMISSION AND COUNCIL , ( 1984 ) ECR 3335 ). NOR COULD THE COUNCIL ' S CONDUCT GIVE RISE TO ANY EXPECTATION ON THE PART OF THE APPLICANTS THAT THEIR APPOINTMENTS WOULD BE RETROACTIVE .

60 THE SUBMISSION THAT THERE WAS A FAILURE TO RESPECT THE PRINCIPLE OF LEGITIMATE EXPECTATION MUST THEREFORE ALSO BE REJECTED .

Decision on costs

COSTS

61 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

62 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATIONS IN CASES 9 AND 10/84 AS INADMISSIBLE ;

( 2)DISMISSES THE APPLICATIONS IN CASES 87 AND 130/77 AND 22/83 AS UNFOUNDED ;

( 3)ORDERS THE PARTIES TO PAY THEIR OWN COSTS .