OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 4 June 1985 ( *1 )

Mr President,

Members of the Court,

I. Facts and course of the procedure

In order to ensure a proper understanding of this case, I propose in the first place to incorporate in my Opinion the facts and course of the procedure as summarized in the Report for the Hearing. I have made only a few additions, taken from the correspondence between the Commission and Agence Européenne de Contacts SA, concerning the contracts which those parties entered into with one another.

Between 1 December 1976 and 31 May 1978 Jean-Louis Tordeur was placed at the disposal of the Commission of the European Communities as a temporary worker by two temporary-staff agencies which had taken part in invitations to tender organized by the Commission for the recruitement of such staff.

Mr Tordeur brought an action against the Commission and the temporary-staff agencies before the Tribunal du Travail [Labour Tribunal], Brussels, in which he maintained that the Law of 28 June 1976 provisionally regulating temporary employment, temporary work, and the placing of workers at the disposal of employers (Moniteur Belge of 7 August 1976, p. 9968) was applicable to him. In support of his claim, Mr Tordeur relied on Articles 10 and 32 of that law.

Article 10 provides that:

‘The remuneration of a temporary worker may not be lower than that to which he would have been entitled if he had been employed in the same circumstances as a permanent employee by the employer.’

Mr Tordeur contends that the duties which he performed in practice at the Commission are normally those of an administrator in Grade A 7 and not those of a clerk, as he was described in the contract of employment. On the basis of that provision, Mr Tordeur applied for an order requiring the Commission and the temporary-staff agencies to pay him the difference between the clerk's salary that he had received and the salary of an administrator in Grade A 7.

Article 32 of the Law of 28 June 1976 provides as follows:

‘(1) A legal or natural person may not carry on an activity outside the rules laid down in Chapters I and II where the activity consists in placing workers recruited by that person at the disposal of third parties who use those workers and exercise in relation to them any part of the authority normally vested in an employer.

...

(3) Where a user has work carried out by workers placed at his disposal in breach of paragraph 1, the user and the workers shall be regarded as bound by a contract of employment of indeterminate duration from the commencement of the work. ...

(4) The person using temporary workers and the person who places the workers at his disposal in breach of paragraph 1 shall be jointly and severally liable for the payment of social contributions, remuneration, compensation and benefits resulting from the contract referred to in paragraph 3.’

On the basis of those provisions, Mr Tordeur applied for an order requiring the Commission and the temporary-staff agencies to pay him compensation in lieu of notice for breach of a contract of employment of indeterminate duration, as provided for by Article 32 (3).

By interlocutory decision of 30 May 1983, the Tribunal du Travail declared that the relationship between Mr Tordeur on the one hand and the Commission and the two temporary-staff agencies on the other was governed by the Law of 28 June 1976.

The Commission appealed against that judgment before the Cour du travail [Labour Court], Brussels, on the ground that, pursuant to Articles 178 and 215 of the EEC Treaty, the Court of Justice had exclusive jurisdiction in the dispute with Mr Tordeur and that the Law of 28 June 1976 was not applicable to the Commission.

By judgment of 11 September 1984, the Cour du travail decided to stay the proceedings as regards certain points and to refer to the Court of Justice the following questions for a preliminary ruling:

(a) Does the Communities' liability towards a temporary worker under the provisions of Belgian law applicable to contracts entered into between the Commission and temporary-staff agencies fall within the scope of its noncontractual liability, as referred to in the second paragraph of Article 215 of the EEC Treaty, or within the scope of some other rule of Community law which gives the Court of Justice exclusive jurisdiction over the claim brought against the Commission?

(b) If the answer to the first question is in the affirmative, does Article 23 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (if it is applicable in this case, a question which is also submitted to the Court of Justice) or any other rule of Community law which may be applicable permit in this case an exception to the jurisdiction of the Court of Justice in favour of the national court in which proceedings have already been commenced?

(c) If the answer to the first question is in the negative, or if the answer to the second question is in the affirmative, do Articles 12 to 16 of the Protocol on the Privileges and Immunities of the European Communities, signed in Brussels on 8 April 1965, or any other rule of Community law which may be applicable preclude the application to the Commission of national provisions which, in the event of nonobservance of certain rules, impose, as a civil sanction, a contract of employment of indeterminate duration between a temporary worker and the user of his services?'

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

The Court also requested the Commission to produce before the hearing the framework contract for the provision of services by temporary workers which it had entered into with the Agence Européenne des Contacts SA. The documents submitted by the Commission in response to that request show beyond doubt, in so far as is relevant to this case, only that the temporary-staff agency was under an obligation, as regards the Belgian legislation (in accordance with the Royal Decree of 28 November 1969) to comply with the Belgian provisions on social security in addition to the terms of the contract. There is a difference of opinion between the parties as to whether the entire body of Belgian social security legislation, was to be regarded as applicable. Paragraph 6 of the Commission's invitation to tender, which is crucial in that regard, reads as follows:

‘In accordance with the provisions of the Royal Decree of 28 November 1969 implementing the law of 1969 which reviews the Decree Law of 28 December 1944 concerning social security for workers (Moniteur Belge of 5 December 1969), all the provisions of Belgian social security legislation shall be applied to temporary staff made available.’

The terms of the contract concluded with Agence Européenne des Contacts SA, which was subsequently renewed, can, as I remarked earlier, be inferred only from the correspondence submitted. It seems that a real framework contract was never concluded with that agency.

However, the framework contract concluded by the Commission with Randstad SA expressly stipulates that temporary staff is to be placed at the Commission's disposal in accordance with the Law of 28 June 1976.

II. Answer to the questions submitted

II.1. Preliminary remarks of a general nature

Before considering the questions submitted, I believe it is necessary to point out in limine that the Court of Justice cannot give a ruling either on the interpretation of the contracts successively concluded by the Commission with two temporary-staff agencies or on the interpretation of the relevant Belgian legislation. Accordingly, it is important in my view to take cognizance of those documents only in so far as they serve to clarify the true nature of the substantive dispute before the court which submitted the reference. However, the lengthy oral and written observations of the parties to the main action concerning the interpretation of the contracts and the Belgian Law of 28 June 1976 at issue in this case need not be considered by the Court.

Mr Tordeur confirmed at the hearing in reply to a question from the Judge-Rapporteur that the crux of his argument was that, on the basis of Article 32 (3) of the said law (which in his view was undoubtedly applicable at the material time), an employment relationship between a worker and a Community institution can arise not on the basis of the Staff Regulations (or the Conditions of Employment of Other Servants of the European Communities, hereinafter referred to as ‘the Conditions of Employment’) but under Belgian law.

The dispute itself is concerned with Mr Tordeur's claim, referred to earlier, for an order requiring the Commission and the temporary-staff agencies to pay him compensation in lieu of notice for breach of a contract of employment of indeterminate duration which, in his view, arose under Article 32 (3) of the relevant law because the Commission's conduct was contrary to Article 32 (1) of that law.

In my view, the question whether the Commission's liability under the said legal provision amounts to contractual or statutory liability can be answered only by the national court. Moreover, that question does not strike me as pertinent as far as the Court is concerned. It is not disputed that the contracts concluded by the Commission in this case are in principle governed exclusively by national law. If the Commission, in entering into or in the performance of such contracts, infringes the Belgian legislation, its non-contractual liability under that national legislation is not in my view governed by the second paragraph of Article 215 of the EEC Treaty. In my view, the statutory extension of contractual liability, as in this case, is governed, by analogy with the first paragraph of Article 215, exclusively by the law applicable to the contract in question. I would come to the same conclusion for instance as regards agreements for a lease concluded by the Commission which were contrary to the national legislative provisions applicable. The second paragraph of Article 215 of the EEC Treaty would in my view be applicable in this case only if the Commission, in entering into a contract of the kind at issue, were also to infringe the Staff Regulations or the Conditions of Employment. However, the first question submitted by the Belgian court is not concerned with that point.

Instead, in my view, the real problem which could arise in this case is whether the application of Belgian law is capable of producing a result which is contrary to the Conditions of Employment referred to earlier. I believe that the application of national law can never, on the basis of the Conditions of Employment, lead to an ‘appointment by operation of law’ which is contrary to those Conditions (or to the Staff Regulations). That limit to the applicability of national law is, however, referred to by the national court only in its third question and is therefore best answered in that context.

II.2. Answer to the/ml question

In the light of my preliminary remarks of a general nature, I consider that the first question submitted by the national court should be answered as follows:

‘The liability of the Community towards a temporary worker which arises under the Belgian national provisions applicable to contracts entered into between the Commission and temporary-staff agencies does not fall within the scope of the Community's non-contractual liability, which is referred to in the second paragraph of Article 215 of the EEC Treaty, or within the scope of another rule of Community law which confers on the Court of Justice exclusive jurisdiction over the claim brought against the Commission.’

II.3. Answer to the second question

In the light of the answer which I have suggested to the first question, there is no need to answer the second question.

II.4. Answer to the third question

As regards the third question, I share the view expressed by both parties to the main action that Articles 12 to 16 inclusive of the Protocol on the Privileges and Immunities of the European Communities are not applicable to this case since they relate exclusively to the privileges and immunities of officials and other servants of the Communities.

However, I share the Commission's view that the Conditions of Employment preclude the application of national provisions which lead to the creation of a contract of employment of indeterminate duration between a Community institution and temporary workers. Such a contract can come into existence only in accordance with the provisions of the Conditions of Employment. In the circumstances, it seems to me that only the provisions relating to auxiliary staff (Articles 51 to 78 of the Conditions of Employment) are relevant in that regard. In my view, the recruitment of such staff is exhaustively regulated in Articles 55 and 56. Accordingly, in the event of the infringement of the relevant national provisions, the national court can only award such damages as it considers appropriate against the Community institution concerned.

I therefore suggest that the third question submitted by the national court should be answered as follows:

‘The Conditions of Employment of Other Servants of the European Communities preclude the application of national provisions which lead to the creation of a contract of employment of indeterminate duration between a Communityinstitution and a temporary worker.’

( *1 ) Translated from the Dutch.