JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

5 October 2004

(Staff employed at the JET Joint Undertaking – Equal treatment – Failure to confer status of temporary servant – Article 152 EA – Reasonable time – Material damage sustained) In Case T-45/01, Stephen Sanders, residing in Oxfordshire (United Kingdom), and the 94 applicants whose names appear in the annex, represented by P. Roth, QC, I. Hutton and A. Howard, Barristers, applicants, v Commission of the European Communities, represented by J. Currall and L. Escobar Guerrero, acting as Agents, with an address for service in Luxembourg, defendant, supported byCouncil of the European Union, represented initially by J.-P. Hix and A. Pilette, and subsequently by J.-P. Hix and B. Driessen, acting as Agents, intervener, APPLICATION for damages for the material loss sustained as a result of the failure to recruit the applicants as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking,



THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),



composed of: B. Vesterdorf, President, M. Jaeger and H. Legal, Judges, Registrar: J. Plingers, Administrator,

gives the following

Judgment

Legal background

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(d) nominate the Director and the senior staff of the project with a view to their appointment by the Commission or the host organisation as appropriate and determine their period of assignment, approve the main structure of the project team and decide the procedures for the assignment and management of staff;

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(f) in accordance with Article 10 approve the annual budget including establishment of staff as well as the project development plan and the project cost estimates.’

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‘(a) organise, direct and supervise the project team;

(b) submit to the JET Council proposals on the main structure of the project team, and propose to the JET Council the nomination of senior staff’.

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‘8.1. The project team shall assist the Director of the project in the performance of his duties. Its staff shall be fixed in the staff establishment as defined in the annual budget. It shall be composed of staff coming from the members of the Joint Undertaking as provided for in point 8.3 and of other personnel. The staff of the project team shall be recruited in accordance with the provisions of [Articles] 8.4 and 8.5 below.

8.2. The composition of the project team shall strike a reasonable balance between the need to guarantee the Community nature of the project, especially in the case of posts for which qualifications of a certain level are required (physicists, engineers, administrative staff at an equivalent level) and the need to give the Director of the project the widest possible authority in the matter of staff selection in the interests of efficient management. In applying this principle account shall also be taken of the interests of the non-Community members of the Joint Undertaking.

8.3. The members of the Joint Undertaking shall make available to the Joint Undertaking qualified scientific, technical and administrative staff.

8.4. Staff made available by the host organisation shall remain in the employment of the host organisation on the terms and conditions of service of that organisation and be assigned by the latter to the Joint Undertaking.

8.5. Unless decided otherwise in special cases in accordance with the procedures for the assignment and management of staff to be decided by the JET Council, staff made available by the members of the Joint Undertaking other than the host organisation as well as other personnel shall be recruited by the Commission for temporary posts in accordance with the conditions of employment of other servants of the European Communities and assigned by the Commission to the Joint Undertaking.

8.6. All staff forming part of the project team shall come under the sole management authority of the Director of the project.

8.7. All staff expenditure, including expenditure related to staff assigned to the Joint Undertaking by the Commission and the host organisation shall be borne by the Joint Undertaking.

8.8. Each member having a contract of association with Euratom shall undertake to re-employ the staff whom it placed at the disposal of the project and who were recruited by the Commission for temporary posts, as soon as the work of such staff on the project has been completed.

8.9. The JET Council shall establish the detailed procedures for assignment and management of staff.’

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‘8.1. The project team shall assist the Director of the project in the performance of his duties. Its staff shall be fixed in the staff establishment as defined in the annual budget. It shall be composed of staff coming from the members of the Joint Undertaking as provided for in Article 8.3.’

‘8.3. The members of the Joint Undertaking having association contracts with Euratom, or limited duration contracts in the framework of the Euratom Fusion programme in Member States where there is no association (hereafter referred to as the Parent Organisation) shall make available to the Joint Undertaking qualified scientific, technical and administrative staff.’

‘8.4. Staff made available by Parent Organisations shall be seconded to the Joint Undertaking and shall:

(a) remain throughout the period of secondment in the employment of their Parent Organisations on the terms and conditions of service of those Organisations;

(b) be entitled, throughout the period of their secondment, to an allowance as specified in the “Rules applicable to Secondment of Personnel from Parent Organisations to the Joint Undertaking”, adopted by the JET Council under Article 8.5.’

‘8.5. The JET Council shall adopt the detailed procedures for the management of staff (including “Rules applicable to Secondment of Personnel from Parent Organisations to the Joint Undertaking”). It shall adopt the transitional provisions and shall take the necessary measures with regard to the project team assigned to the Joint Undertaking by the Commission and by the host organisation before 21 October 1998.’

‘8.7. All staff expenditure, including reimbursement of staff expenditure incurred by the seconding Parent Organisations and expenditure related to staff assigned to the Joint Undertaking by the Commission and the host organisation prior to the entry into force of the above provisions, shall be borne by the Joint Undertaking.’

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– declare that the Commission discriminated against the applicants without objective justification during their engagement on the JET project as regards their remuneration, pension rights and related benefits, and security of future employment;

– declare that the applicants should have been treated as ‘other personnel’ within the terms of Article 8.1 of the original JET Statutes;

– declare that the amendments to Article 8 of the JET Statutes made by Council Decision 98/585/Euratom and the provisions implementing them were unlawful in so far as they established or helped to maintain discrimination against the applicants without objective justification as regards the matters set out in the first head of claim;

– declare that the applicants had a right to be recruited to temporary Commission posts;

– annul the Commission’s decision dated 14 November 2000;

– order the Commission to compensate the applicants for the loss of earnings, pension, benefits and privileges occasioned by the aforesaid breaches of Community law;

– order the Commission to pay the costs.

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– dismiss the action;

– make an appropriate order as to costs.

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Year 1986 1989 1998 Predicted/actual Budget Filled Budget Filled Budget Filled Team posts 444 384 470 383 n/a 242.5 Contract posts 210 229 210 242 n/a 255

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On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

1. Orders the Commission to pay damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking;

2. Orders the parties to produce to the Court of First Instance within six months of this judgment an agreement on the quantum of damages due in reparation of the said loss;

3. In the absence of agreement orders the parties to put before the Court of First Instance within the same period their submissions on the quantum of damages;

4. Reserves the costs.

Vesterdorf Jaeger Legal

H. Jung B. Vesterdorf