Judgment of the Court (Second Chamber) of 5 April 1979. - Arturo Bellintani and others v Commission of the European Communities. - Technical assistants. - Case 116/78.



European Court reports 1979 Page 01585

Greek special edition Page 00853



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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

( STAFF REGULATIONS OF OFFICIALS , ART . 91 )

2 . OFFICIALS - CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES - AMENDMENTS MADE BY COUNCIL REGULATION NO 2615/76 - CONDITIONS APPLICABLE TO LOCAL AND ESTABLISHMENT STAFF PAID FROM APPROPRIATIONS IN THE RESEARCH AND ESTABLISHMENT BUDGET - PERSONS TO WHOM THEY APPLY

( COUNCIL REGULATION NO 2615/76 )

3 . OFFICIALS - ADMINISTRATION ' S DUTY TO ASSIST - SCOPE

( STAFF REGULATIONS OF OFFICIALS , ART . 24 )

4 . OFFICIALS - CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES - AMENDMENTS MADE BY COUNCIL REGULATION NO 2615/76 - CONDITIONS APPLICABLE TO LOCAL AND ESTABLISHMENT STAFF PAID FROM APPROPRIATIONS IN THE RESEARCH AND ESTABLISHMENT BUDGET - PURPOSE

( COUNCIL REGULATION NO 2615/76 , ART . 2 )

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 . REGULATION NO 2615/76 IS APPLICABLE TO ALL MEMBERS OF THE LOCAL AND ESTABLISHMENT STAFFS WHO WERE IN THE SERVICE OF THE COMMUNITY ON ITS ENTRY INTO FORCE .

3 . THE DUTY TO PROVIDE ASSISTANCE DERIVING FROM ARTICLE 24 OF THE STAFF REGULATIONS MEANS THAT THE COMMUNITY IS REQUIRED TO ASSIST ITS OFFICIALS , FIRST , IN ORDER TO DEFEND THEM AGAINST CERTAIN RISKS ARISING FROM THEIR DUTIES , AND EMANATING IN PARTICULAR FROM THIRD PARTIES , AND , SECONDLY , TO FACILITATE THEIR FURTHER TRAINING AND INSTRUCTION .

4 . ARTICLE 2 OF REGULATION NO 2615/76 CANNOT IN ANY WAY BE REGARDED AS PROVIDING THE MEANS FOR TEMPORARY STAFF TO BECOME OFFICIALS . THE MEASURES PROVIDED FOR BY THAT ARTICLE ARE FOR THAT REASON VERY DIFFERENT FROM THE PROCEDURES RELATING TO INTEGRATION DESCRIBED IN ARTICLES 102 AND 107 OF THE STAFF REGULATIONS .

Parties

IN CASE 116/78

ARTURO BELLINTANI , BARTOLO BETTI , CARLO BREGANI , ANGELO DEL GRANDE , ANGELO GEMELLI , GIAMPAOLO NICHELE , BRUNO PALOMBI , ANGELO RETTORE , ILARIO SCARTON , ALL LABORATORY TECHNICIANS AT THE JOINT RESEARCH CENTRE , ISPRA , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DENISE SORASIO-ALLO , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , 36 RUE DE PRACTERE , BRUSSELS ( 1050 ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE NEW CONTRACT OFFERED TO THE APPLICANTS IN PURSUANCE OF COUNCIL REGULATION NO 2615/76 OF 21 OCTOBER 1976 ( OFFICIAL JOURNAL NO L 299 , P . L ) AND , ACCORDINGLY , OF THE COMMISSION ' S DECISION OF 20 MARCH 1978 REJECTING THEIR COMPLAINT OR , IN THE ALTERNATIVE , FOR A DECLARATION THAT THE AFOREMENTIONED REGULATION NO 2615/76 IS INVALID ,

Grounds

1THE APPLICATION , WHICH WAS LODGED BY NINE EMPLOYEES WHO AT FIRST WERE RECRUITED AS LOCAL STAFF BY THE JOINT RESEARCH CENTRE AT ISPRA AND WHO SUBSEQUENTLY ACCEPTED CLASSIFICATION EITHER IN CATEGORY C FOR AN INDEFINITE PERIOD OR IN CATEGORY B FOR A RENEWABLE PERIOD OF FIVE YEARS IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 2615/76 OF THE COUNCIL OF 21 OCTOBER 1976 RELATING TO THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL NO L 299 OF 29 OCTOBER 1976 , P . 1 ), REQUESTS THE COURT TO DECLARE , PRINCIPALLY , THAT THE NEW CONTRACT BETWEEN THEM AND THE ADMINISTRATION IS ' ' UNLAWFUL AND MUST THEREFORE BE ANNULLED , ON THE GROUND THAT THE APPLICANTS WERE ENTITLED TO BE CLASSIFIED IN CATEGORY B WITH A CONTRACT FOR AN INDEFINITE PERIOD ' ' OR , IN THE ALTERNATIVE , THAT REGULATION NO 2615/76 ' ' HAS NO LEGAL BASIS , AS REGARDS EMPLOYEES PREVIOUSLY APPOINTED ' ' .

2THE APPLICANTS , ALL OF WHOM HAVE A TECHNICAL QUALIFICATION , WERE RECRUITED AS LOCAL STAFF IN ACCORDANCE WITH THE ADMINISTRATIVE PRACTICE APPLIED UNTIL THE ENTRY INTO FORCE OF REGULATION NO 2615/76 , WHICH REORGANIZED THE CONDITIONS UNDER WHICH LABORATORY TECHNICIANS WERE IN FUTURE TO BE RECRUITED FOR THE ISPRA CENTRE , AS WERE SEVEN OTHER LABORATORY TECHNICIANS , SIX OF WHOM ENTERED THE RANKS OF THE ESTABLISHMENT STAFF ON 30 MARCH 1976 AND WERE SUBSEQUENTLY PROMOTED AND ESTABLISHED AS OFFICIALS IN CATEGORY B ON 27 OCTOBER 1976 .

3IN SUPPORT OF THEIR CONCLUSIONS THE APPLICANTS PUT FORWARD A SERIES OF GROUNDS OF COMPLAINT WHICH , FOR THE PURPOSE OF CLARITY , SHOULD BE REGROUPED INTO SIX PRINCIPAL SUBMISSIONS , WHICH WILL BE EXAMINED IN TURN .

4THE APPLICANTS FIRST MAINTAIN THAT THEIR RECRUITMENT AS LOCAL STAFF IN CATEGORY D WAS INCORRECT AND CONSTITUTED AN INFRINGEMENT OF ANNEX IB TO THE STAFF REGULATIONS , SINCE THEIR QUALIFICATIONS SHOULD HAVE ENTITLED THEM TO CLASSIFICATION IN CATEGORY B .

5THE APPLICANTS HAVE NEVER CONTESTED THEIR INITIAL CLASSIFICATION AS LOCAL STAFF .

6THEY COULD HAVE DONE SO WITHIN THE PRESCRIBED PERIOD , SINCE 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 .

7ACCORDINGLY , THE REQUEST FOR THEIR INITIAL CLASSIFICATION TO BE REVIEWED ON THE BASIS OF ANNEX IB TO THE STAFF REGULATIONS IS TODAY INADMISSIBLE .

8SECONDLY , THE APPLICANTS MAINTAIN THAT REGULATION NO 2615/76 IS NOT APPLICABLE TO THEM , ON THE GROUND THAT WHEN IT WAS ADOPTED THEY WERE ALREADY IN THE SERVICE OF THE COMMUNITY .

9HOWEVER , ARTICLE 2 ( 1 ) OF REGULATION NO 2615/76 PROVIDES THAT THE REGULATION SHALL BE APPLICABLE TO LOCAL STAFF AND PARAGRAPH ( 5 ) OF THAT ARTICLE SIMILARLY PROVIDES THAT THE CONTRACT OF ANY MEMBER OF THE LOCAL STAFF WHO DOES NOT ACCEPT WITHIN SIX MONTHS THE OFFER MADE BY THE ADMINISTRATION SHALL BE TERMINATED .

10ACCORDINGLY , REGULATION NO 2615/76 IS APPLICABLE TO THE APPLICANTS , AS IT IS TO ALL MEMBERS OF THE LOCAL AND ESTABLISHMENT STAFFS WHO WERE IN THE SERVICE OF THE COMMUNITY ON ITS ENTRY INTO FORCE .

11IN A THIRD SUBMISSION THE APPLICANTS MAINTAIN THAT BEFORE THE ENTRY INTO FORCE OF REGULATION NO 2615/76 THEIR POSITION WAS THE SAME AS THAT OF THE MEMBERS OF THE LOCAL STAFF WHO WERE SUBSEQUENTLY MADE OFFICIALS IN CATEGORY B , SO THAT THERE WAS DISCRIMINATION AS BETWEEN THEM AND THOSE PROMOTED .

12THE APPOINTMENT OF THOSE EMPLOYEES AS ESTABLISHMENT STAFF AND THEIR SUBSEQUENT PROMOTION AS OFFICIALS TO CATEGORY B IN THE BUDGETARY POSTS AVAILABLE HAS NEVER BEEN CONTESTED AND CAN THEREFORE NO LONGER BE SUBMITTED FOR REVIEW BY THE COURT OF JUSTICE .

13IN THOSE CIRCUMSTANCES THE APPLICANTS ARE WRONG TO CLAIM THE EXISTENCE OF POSSIBLE DISCRIMINATION BETWEEN OFFICIALS ON THE ONE HAND AND LOCAL STAFF ON THE OTHER .

14IN A FOURTH SUBMISSION THE APPLICANTS MAINTAIN THAT THE ADMINISTRATION HAS FAILED IN ITS DUTY TO PROVIDE ASSISTANCE DERIVING FROM ARTICLE 24 OF THE STAFF REGULATIONS .

15ACCORDING TO THE TERMS OF THAT ARTICLE THE COMMUNITY IS REQUIRED TO ASSIST ITS OFFICIALS , FIRST , IN ORDER TO DEFEND THEM AGAINST CERTAIN RISKS ARISING FROM THEIR DUTIES , AND EMANATING IN PARTICULAR FROM THIRD PARTIES , AND , SECONDLY , TO FACILITATE THEIR FURTHER TRAINING AND INSTRUCTION .

16THE DIFFICULTIES EXPERIENCED BY THE APPLICANTS AS REGARDS PROGRESS IN THEIR CAREERS DO NOT ENTITLE THEM TO CLAIM THAT THERE HAS BEEN A FAILURE TO FULFIL THE DUTY TO PROVIDE ASSISTANCE , UNDERSTOOD IN THE ABOVE SENSE .

17THAT SUBMISSION MUST THEREFORE BE DISMISSED AS IRRELEVANT .

18IN A FIFTH SUBMISSION THE APPLICANTS MAINTAIN THAT TO LIMIT THE DURATION OF THE CONTRACT TO FIVE YEARS IN CATEGORY B HAS ' ' ABSURD CONSEQUENCES ' ' AND THAT THE REGULATION IS ' ' NOTHING MORE THAN A BAR TO THE PURSUIT OF THEIR CAREERS ' ' .

19AN OPPORTUNITY FOR PROMOTION IS OPEN TO THE APPLICANTS , SINCE THEY ARE COVERED BY THE TERMS OF THE ' ' GENERAL PROVISIONS TO GIVE EFFECT TO THE PROCEDURE FOR PROMOTING STAFF PAID FROM RESEARCH APPROPRIATIONS ' ' ( ADMINISTRATIVE NOTICES NO 197 OF 28 APRIL 1978 ) WHICH APPLY TO ' ' TEMPORARY STAFF HOLDING CONTRACTS ' ' .

20IT SHOULD ALSO BE NOTED THAT THE CONTRACTS OF EMPLOYMENT IN QUESTION ARE RENEWABLE .

21ACCORDINGLY , IT APPEARS THAT REGULATION NO 2615/76 IS ESPECIALLY ADAPTED TO THE EMPLOYMENT OF STAFF WHO PERFORM DUTIES CALLING FOR SCIENTIFIC AND TECHNICAL QUALIFICATIONS AND WHO ARE PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET .

22IN A SIXTH SUBMISSION THE APPLICANTS MAINTAIN THAT THE REAL AIM OF REGULATION NO 2615/76 WAS TO CARRY THROUGH AN INTEGRATION PROCEDURE AND THAT THE ' ' TUGENDHAT COMMITTEE ' ' , WHICH WAS SET UP BY THE COMMISSION IN 1977 FOR THE IMPLEMENTATION OF THAT REGULATION , IS IN FACT NOTHING MORE THAN AN ESTABLISHMENT BOARD .

23HOWEVER , ARTICLE 2 OF REGULATION NO 2615/76 CANNOT IN ANY WAY BE REGARDED AS PROVIDING THE MEANS FOR TEMPORARY STAFF TO BECOME OFFICIALS AND THE MEASURES PROVIDED FOR BY THAT ARTICLE ARE FOR THAT REASON VERY DIFFERENT FROM THE PROCEDURES RELATING TO INTEGRATION DESCRIBED IN ARTICLES 102 AND 107 OF THE STAFF REGULATIONS .

24MOREOVER , THE TUGENDHAT COMMITTEE CANNOT BE REGARDED AS AN ESTABLISHMENT BOARD , SINCE , FIRST , BOTH SIDES WERE EQUALLY REPRESENTED ON IT AND , SECONDLY , ITS TASK WAS TO RULE ON COMPLAINTS CONCERNING CLASSIFICATION .

25THE PRINCIPAL CLAIMS PUT FORWARD BY THE APPLICANTS AS RESPECTS THE WHOLE OF THEIR SUBMISSIONS MUST BE DISMISSED .

26THE APPLICANTS REQUEST THE COURT IN THE ALTERNATIVE TO DECLARE REGULATION NO 2615/76 INVALID ON THE GROUND THAT IT IS IN BREACH OF THE PRINCIPLES OF NON-DISCRIMINATION AND OF EQUALITY OF TREATMENT .

27THE APPLICANTS ' ARGUMENT AMOUNTS TO CONTESTING THE REGULATION ON THE GROUND THAT IT DOES NOT ENSURE THAT THEY WILL RECEIVE APPOINTMENTS IN CATEGORY B , IN THE SAME WAY AS THE SIX EMPLOYEES WHO WERE PREVIOUSLY APPOINTED AS OFFICIALS AND WHOSE APPOINTMENTS CANNOT HENCEFORTH BE CONTESTED .

28EVEN THOUGH , ON AN APPROPRIATE OCCASION , THE APPLICANTS MAY POSSIBLY ASPIRE TO SUCH AN APPOINTMENT , THEY CANNOT CLAIM A RIGHT TO IT .

29THEY CANNOT , THEREFORE , RELY ON THE PRINCIPLE OF NON-DISCRIMINATION IN ORDER TO CREATE SUCH A RIGHT .

30FURTHERMORE , REGULATION NO 2615/76 OFFERS THEM THE OPPORTUNITY OF OBTAINING RENEWABLE CONTRACTS FOR FIVE YEARS IN CATEGORY B .

31THAT PERIOD HAS ALREADY BEEN CONSIDERED TO BE LOGICAL .

32FURTHERMORE , OPPORTUNITIES FOR PROMOTION DO EXIST .

33THEREFORE THE ALTERNATIVE CONCLUSIONS MUST ALSO BE DISMISSED .

Decision on costs

COSTS

34THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

35UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

36HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .