WRITTEN QUESTION E-1983/98

by Klaus-Heiner Lehne (PPE) to the Commission

(30 June 1998)

Subject: Staff of the European Schools appointed by the Headmaster, generally known as "part-time teachers"

Article 3(2) of the Conditions of employment for part-time teachers in the European Schools (97 - D-422) clearly stipulates that Article 80(1) of the Regulations for members of the seconded staff of the European Schools applies. Article 80(1) reads:

The Board of Appeal shall have sole jurisdiction in the first and final instance in any dispute between the management organs of the School and members of staff regarding the legality of an act adversely affecting them. Where such appeals are of a financial character, the Board of Appeal shall have unlimited jurisdiction.

Article 3(4) (Legislation of the country in which the School is situated) of the Conditions of employment for part-time teachers in the European Schools is equally clear in stipulating:

The conditions of appointment and of dismissal of part-time teachers, teachers of religion and temporary staff shall be governed by the legislation of the country in which the School is situated with respect to employment relationship, social security and taxation regulations, without prejudice to the provisions above.

The courts of the country in which the School is situated shall have jurisdiction in any dispute to be resolved.

The members of the legal profession are therefore divided in their opinions on which of these provisions takes precedence. In view of the decision of a German court to declare that it does not have jurisdiction in a case involving dismissal it must be assumed that the inconsistency between Article 3(2) and Article 3(4) results in some uncertainty as to what the law is.

As the Commission is represented on the Board of Governors of the European Schools and as such has accepted the Regulations for members of the seconded staff of the European Schools and the Conditions of employment for part-time teachers, could it consider this problem and explain

- what are the respective areas of responsibility of the Board of Appeal and the local courts with respect to the Conditions of employment for part-time teachers in disputes with the management of the European Schools, especially in the event of dismissal and of annual reappointment followed by termination,

- whether or not national legislation breaches the Conditions of employment of part-time staff in the event of inconsistencies between a provision of the these Conditions and a provision of the legislation of the country in which the School is situated, and what legal authority has jurisdiction for determining this?

Could the Commission also comment on the assumption that the management is exploiting the legal uncertainty to apply national legislation with regard to provisions governing employment and industrial relations if this legislation is more favourable, but not vice versa?

Answer given by Mr Liikanen on behalf of the Commission

(29 July 1998)

The Conditions of employment for part-time teachers, adopted by the Board of Governors at its meeting on 26 and 27 April 1994 and applicable to those who have been recruited since the 1996/97 school year, set out arrangements which in certain areas refer both to the Regulations for members of the seconded staff, in view of the nature of the work, and also to the legislation of the country in which the School is situated, since employment contracts are subject to private law. These arrangements also provide for dual jurisdiction: the Board of Appeal and the courts of the country in which the School is situated, depending on the case.

In a system of this kind, delimiting legislations and jurisdictions can sometimes be problematic, as the two specific questions the Honourable Member raises on this point show. Since it is the European Schools' own bodies which are competent to rule on these questions, the Commission's opinion must not prejudice the decisions of these bodies and therefore only expresses its own views as a member of the Board of Governors.

As regards the first question, the Commission's view is that it is for the Board of Appeal to rule on any dispute on the application of the conditions of employment by the schools, and that it is for the courts of the country in which the School is situated to resolve any disputes on the application of the Member State's national provisions in matters such as social security and taxation. Recruitment and dismissal of teachers being issues relating to conditions of employment, it would appear logical for the Board of Appeal to rule on them.

As for the second question, the Commission's opinion is that any decision validly taken by a body created by international agreement which has the necessary administrative powers, such as the Board of Governors, is binding on the contracting parties and that, in general practice, such a decision has the status of a legal instrument deriving from an international agreement, which takes precedence over national law.

Finally, with regard to the Honourable Member's hypothesis that the administration could use the legal uncertainty to apply the legislation which would be most favourable to it, the Commission has no evidence that this regrettable practice is applied in the European Schools. In any case, if this were true, those affected could always use the means of defence put at their disposal by the Conditions of employment.