CELEX: 51978PC0395
Language: en
Date: 1978-07-28
Title: PROPOSAL FOR A COUNCIL REGULATION ( EURATOM, CECA, CEE ) AMENDING THE STAFF REGULATIONS OF OFFICIALS AND CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES AND ESTABLISHING AN ADMINISTRATIVE TRIBUNAL OF THE EUROPEAN COMMUNITIES

No C 225/6                           Official Journal of the European Communities                               22.9.78
                                                             II
                                                    (Preparatory Acts)
                                                COMMISSION
               Proposal for a Council Regulation (Euratom, ECSC, EEC) amending the Staff
              Regulations of officials and Conditions of Employment of other servants of the European
               Communities and establishing an Administrative Tribunal of the European Communities
                             (Presented to the Council by the Commission on 4 August 1978)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                         Whereas experience has shown the need to establish
                                                                 an Administrative Tribunal of the European
Having regard to the Treaty establishing a single                Communities having jurisdiction as provided in this
Council and a single Commission of the European                  Regulation to hear, before any reference is made to
Communities, and in particular Article 24 thereof,               the Court of Justice, any dispute between the
                                                                 Communities and persons to whom the Staff
Having regard to the proposal from the Commission,               Regulations of       officials and      Conditions of
made after consultation with the Staff Regulations               Employment of other servants of the European
Committee,                                                       Communities apply; whereas the Staff Regulations
                                                                 and Conditions of Employment must be amended
Having regard to the opinion of the European                    accordingly;
Parliament,
                                                                Whereas this Administrative Tribunal is established
Having regard to the opinion of the Court of Justice,           within the European Communities system and will
                                                                 act with full respect for the provisions of Community
Whereas it is for the Council, acting by a qualified             law governing, inter alia, the staff of the
majority on a proposal from the Commission after                 Communities; whereas the terms upon which certain
consulting the other institutions concerned, to amend           general provisions will apply to the Administrative
the Staff Regulations of officials and Conditions of             Tribunal and its members must be specified,
Employment of other servants of the European
Communities laid down by Regulation (EEC,
Euratom, ECSC) No 259/68 (*), as last amended by
Regulation (Euratom, ECSC, EEC) No 912/78 (2);
                                                                 HAS ADOPTED THIS REGULATION:
Whereas the Council is required in particular, by
Article 179 of the EEC Treaty and Article 152 of the
Euratom Treaty, to determine the limits within which                                     Article 1
and the conditions under which the Court of Justice
is to have jurisdiction in disputes between the
Communities and their staff;                                    The Staff Regulations of officials of the European
                                                                Communities are amended as follows:
 (») OJ N o L 56, 4. 3. 1968, p. 1.
(:) OJ N o L 119, 3. 5.1978, p. 1.                               1. The following Article is inserted after Article 10a:
 ---pagebreak--- 22. 9. 78                             Official Journal of the European Communities                           N o C 225/7
   'Article 10b                                                     either where the said authority has taken a
                                                                   decision or where it has failed to adopt a measure
    An Administrative Tribunal of the European                     prescribed by the Staff Regulations.
     Communities shall be set up, having jurisdiction in
    disputes between the Communities and any person
    to whom these Staff Regulations apply as provided               The complaint must be lodged within             three
    in Article 91.                                                  months. The period shall start to run:
     The organization of the Tribunal and rules                    — on the date of publication of the act if it is a
     applicable to its members are determined by                        measure of a general nature,
     Annex X.
                                                                   — on the date of notification of the decision to
    The Rules of Procedure of the Tribunal shall be                     the person concerned, or on the date on which
    laid down by the Court of Justice on a                              he became aware of the decision, whichever is
    proposition of the Tribunal and shall require the                   the earlier, if the measure affects a specified
    approval of the Council.                                            person; if, however, an act affecting a specified
    The Tribunal shall itself make internal rules                       person also adversely affects another person,
    governing its mode of operation.'                                   the period shall start to run in respect of that
                                                                        other person on the date on which he becomes
                                                                         aware of the act or on the date of publication,
2. The first paragraph of Article 25 is rescinded.
                                                                        whichever is the earlier,
3. The following Article is inserted after Article 25:              — on the date of expiry of the period prescribed
                                                                        for reply where the complaint concerns an
     'Article 25a                                                        implied decision rejecting a request as provided
                                                                         in Article 25a.
    Any person to whom these Staff Regulations apply
     may submit to the appointing authority a request
     that it take a decision relating to him.                       The authority shall notify the person concerned of
                                                                    its reasoned decision within three months from the
     The authority shall notify the person concerned of
                                                                    date on which the complaint was lodged. If at the
     its reasoned decision within three months from the
                                                                    end of that period no reply to the complaint has
     date on which the request was made.
                                                                    been received, an implied decision rejecting it shall
     If at the end of that period no reply to the request           be presumed to have been taken; an appeal
     has been received, an implied decision rejecting it            against such decision may be lodged under
     shall be presumed to have been taken; a complaint              Article 91.
     in respect thereof may be lodged in accordance
     with Article 90.                                               2.     A complaint by an official shall be submitted
                                                                    through his immediate superior, except where it
     A request by an official shall be submitted through
                                                                    concerns that person, in which case it may be
     his immediate superior, except where it concerns
                                                                    submitted direct to the authority next above.
     that person, in which case it may be submitted
     direct to the authority next above.'
 4. The provisions at Title VII are replaced by the
     following:                                                                           CHAPTER 2
                                                                                       Judicial procedure
                           'TITLE VII
          ADMINISTRATIVE AND JUDICIAL APPEAL                                               Article 91
                         PROCEDURES
                                                                     1.    The Administrative Tribunal shall have
                           CHAPTER 1                                jurisdiction as tribunal both of first and of final
                    Administrative procedure                        instance as to questions of fact and as tribunal of
                                                                    first instance as to questions of law in any dispute
                                                                    between the Communities and any person to
                            Article 90                              whom these Staff Regulations apply regarding the
                                                                     legality of an act adversely affecting such person
     1.     Any person to whom these Staff Regulations              within the meaning of Article 90 (1). In disputes of
      apply may submit to the appointing authority a                 a financial character the Administrative Tribunal
      complaint against an act adversely affecting him,              shall have unlimited jurisdiction.
 ---pagebreak--- No C 225/8                           Official Journal of the European Communities                              22.9. 78
  Notwithstanding the expiry of the limitation                    appellant assisted or represented by a lawyer or
  period for the institution of proceedings before the            other person of his choice or by an organization
   Court of Justice pursuant to Articles 173 of the               within the meaning of Article 24a of the Staff
  EEC Treaty and 146 of the Euratom Treaty                        Regulations duly authorized to that effect within
   against the Regulations of the Council or of the               the conditions laid down in the procedural rules
   Commission all parties may in the event of                     of the Tribunal.
  litigation submitted to the Tribunal and
  concerning a Regulation relating to the rights and
  obligations of servants of the Communities seek to              An institution which is a party to the proceedings
  establish the illegality of the Regulation with the             shall be represented by an agent appointed for the
  object of establishing it to be inapplicable to the             case; the agent may be assisted by an adviser or
  judgment in question.                                           lawyer entitled to practise before a court of a
                                                                  Member State.
  Where an action pursuant to Articles 173 of the
  EEC Treaty and 146 of the Euratom Treaty is                     6.    The President of the Tribunal or a judge
  instituted before the Court of Justice against such             designated by him may at any time attempt a
  a Regulation the Tribunal will defer its judgment               conciliation between the parties. Appeals under
  concerning the applicability of such a Regulation               this Article shall be investigated and, where the
  with the judgment of the Court is delivered which               conciliation fails, heard as provided in the Rules of
  it must then apply.                                             Procedure of the Tribunal.
  2.     An appeal to the Tribunal shall lie only if:
                                                                  The Tribunal shall state the reasons on which its
  — the appointing authority has previously had a                 judgment is based.
      complaint submitted to it pursuant to Article
      90 (1) within the period prescribed therein, and
                                                                  7.    Proceedings before the Tribunal shall be free
  — the complaint has been rejected by express or                 of charge. The Tribunal shall adjudicate upon
       implied decision.                                          costs as provided in its Rules of Procedure.
  3.    Appeals under paragraph 2 shall be filed
  within three months. The period shall start to run:             8.    Decisions of the Tribunal shall be binding on
                                                                  the parties as soon as they are made and shall be
  — on the date of notification of the decision                   enforceable in manner provided in Article 192 of
      taken in response to the complaint,                         the EEC Treaty, Article 164 of the Euratom
                                                                  Treaty and Article 92 of the ECSC Treaty.
  — on the date of expiry of the period prescribed
      for the reply where the appeal is against an
      implied decision rejecting a complaint
      submitted      pursuant     to    Article    90 (1);                              Article 91a
       nevertheless, where a complaint is rejected by
      express decision after being rejected by implied
       decision but before the period for lodging an              1.    The Court of Justice of the European
      appeal has expired, the period for lodging the              Communities shall have jurisdiction to hear any
      appeal shall start to tun afresh on the date of             appeal to have a decision of the Administrative
       notification of the decision to the person                 Tribunal set aside on grounds of a substantial
      concerned.                                                  formal defect, for violation of the Treaties
                                                                  establishing the European Communities, for
                                                                  violation of these Staff Regulations or of the
  4.     By way of derogation from paragraph 2, the
                                                                  Conditions of Employment of other servants, or
  person concerned may, after submitting a
                                                                  for violation of any other material rule or
  complaint to the appointing authority pursuant to
                                                                  principle of law.
  Article 90 (1), immediately file an appeal with the
  Tribunal, provided         that     such    appeal    is
  accompanied by an application either for a stay of              2.    Appeals under paragraph 1 shall be filed
  execution of the contested act or for the adoption              within two months from notification of the
  of interim measures. The proceedings in the                     decision to the appellant; appeals filed out of time
  principal action before the Tribunal shall then be              shall be inadmissible'.
  suspended until such time as an express or implied
  decision rejecting the complaint is taken.
                                                                  3.    An appeal shall have no suspensory effect.
  5.     Appeals to the Tribunal shall be filed and               However, the Court of Justice may at the
  pleaded by the appellant in person or the                       appellant's request order a stay of execution of
 ---pagebreak--- 22. 9. 78                            Official Journal of the European Communities                          No C 225/9
    the decision made in the principal action or                       at least four names presented by the
    interim measures where such execution is likely to                 institutions and by other bodies treated as such
    have harmful consequences which are difficult to                   by virtue of the second paragraph of Article 1
   redress.                                                            of the Staff Regulations, with the exception of
                                                                       the Court of Justice,
   4.      Where a decision of the Tribunal is set aside
                                                                  — a judge and an alternate judge selected and
    in whole or in part by the Court of Justice, the
    Court may either:                                                  appointed by the Court of Justice from a list of
                                                                       at least four names presented by common
   — remit the case to the Tribunal, which shall                       agreement between the Staff Committees of all
        then apply the law as found by the Court of                    the institutions and like bodies.
        Justice, or
   — give final judgment on the merits; in such                   To establish and publish the lists referred to in the
        event the Court of Justice shall have unlimited           second and third paragraphs above the institutions
        jurisdiction in disputes of a financial character.        and like bodies on the one hand and the Staff
                                                                  Committees on the other then shall have a
    5.     Appeals under this Article shall be                    maximum         delay period of        four months
    investigated and heard as provided in the Rules of            commencing from the date of the request which is
    Procedure of the Court of Justice.'                           simultaneously addressed to them by the President
                                                                  of the Court of Justice.
5. The following Annex X is added to the Staff
   Regulations:                                                   In the event of failure to designate one of the
                                                                  judges or alternate judges in the manner
                                                                  prescribed above, the Court shall make the
                                                                  appointment directly. The judge thus appointed
                        ANNEX X                                   shall act in that capacity until such time as an
    ORGANIZATION OF THE ADMINISTRATIVE                            appointment is made in the manner prescribed
    TRIBUNAL OF THE EUROPEAN COMMU-                               above.
          NITIES AND RULES GOVERNING ITS
                         MEMBERS                                   2.    If the President or one of the judges is unable
                                                                   to discharge his duties, whether temporarily or
                                                                  permanently, notably by reason of resignation,
                          CHAPTER I
                                                                  compulsory resignation, retirement or death, he
       Organization of the Administrative Tribunal                 shall be replaced by the Vice-President or the
                                                                  alternate judge appointed with him, as the case
                                                                  may be. If the President or one of the judges is
                           Section 1                              permanently unable to discharge his duties, he
                                                                   shall be replaced by the Vice-President or the
                                                                   appropriate alternate judge until a new President
               Membership of the Tribunal
                                                                   or judge is appointed as provided in paragraph 1.
                           Article 1
                                                                                          Article 2
     1.    The Administrative Tribunal shall consist of:
                                                                    1.    The President and the Vice-President shall be
     — a President and a Vice-President selected and               selected from persons whose independence is
         appointed by the Court of Justice from a list of          beyond doubt and who are jurisconsults of
         at least four names presented by the judges               recognized competence, particularly in the field of
         appointed as hereinafter prescribed; should no            the rights and obligations of public servants; such
         such list be presented within two months                  persons shall not be officials or other servants of
         following the appointment of the judges, the               the Communities.
         Court shall select and appoint the President
         and     Vice-President    directly;   the    same
         procedure shall apply in the event that such a             2.    The judge and the alternate judge to be
         list not be presented within the two months                appointed by virtue of the second indent of Article
         following the termination of the functions of              1 (1) shall be selected from established officials
         the President or Vice-President,                           who are in active employment, have legal training
                                                                    and have special competence in the field of the
     -— a judge and an alternate judge selected and                 rights and obligations arising from the Staff
         appointed by the Court of Justice from a list of           Regulations.
 ---pagebreak--- No C 225/10                        Official Journal of the European Communities                              22. 9. 78
                         Section 2                                                    CHAPTER     II
                                                                         Rules governing the members of the
                      Term of office                                           Administrative Tribunal
                                                                                       Article 7
                         Article 3
                                                                 The members of the Tribunal shall enjoy full
                                                                 independence in the discharge of their duties. They
  1.    The President and the Vice-President shall be
                                                                 shall accept no binding orders. During their term
  appointed for six years. The judges and the
                                                                 of office they shall not be answerable to the
  alternate judges shall also be appointed for six
                                                                 superiors to whom they were answerable in their
  years, except that the first such persons appointed
                                                                 original institution. No disciplinary action shall be
  shall hold office for three years only.
                                                                 taken against them in respect of the opinions
                                                                 which they express in the discharge of their duties.
  The term of office of a judge or alternate judge
  appointed late as provided in the third                        The same provisions shall apply to the
  subparagraph of Article 1 (1) shall not extend                 Vice-President and alternate judges when replacing
  beyond the normal date of expiry, when it shall                the President or one of the judges.
  end as if the delay in appointment had not
  occurred.
                                                                                       Article 8
  2.    The President, the Vice-President, the judges            Before taking up their duties the members of the
  and the alternate judges shall be eligible for                 Tribunal, including the Vice-President and the
  reappointment in manner provided in Article 1 (1).             alternate judges, and the official appointed to act
                                                                 as Registrar shall take before the Court of Justice
                                                                 an oath to discharge their duties impartially and
                                                                 conscientiously and to preserve the secrecy of the
                         Section 3                               deliberations of the Tribunal.
                        Operation                                When taking up their duties the members of the
                                                                 Tribunal, including the Vice-President and the
                                                                 alternate judges, shall give a solemn undertaking
                                                                 that, both during and after their term of office,
                         Article 4                               they will respect the obligations arising therefrom,
                                                                 in particular the duty to behave with integrity and
                                                                 discretion as regards the acceptance, after they
   The Tribunal shall for administrative and                     have ceased to hold office, of certain appointments
  budgetary purposes be attached to the Court of                 or benefits.
  Justice.
                                                                  Any doubt on this point shall be settled by
                                                                 decision of the Court of Justice.
                         Article 5
                                                                                        Article 9
   The headquarters of the Tribunal shall be in
                                                                 The members of the Tribunal, including the
   Luxembourg. The Tribunal may nevertheless
                                                                  Vice-President and the alternate judges when
   decide to hear cases elsewhere if the need arises.
                                                                  replacing a member, may not engage in any other
                                                                  occupation whatsoever, unless exemption is
                                                                  exceptionally granted by the Court of Justice.
                          Article 6
                                                                                        Article 10
   The Tribunal shall be assisted by an official
   appointed by the Court of Justice to act as                    A member of the Tribunal, or the Vice-President
   Registrar.                                                     or an alternate judge, may be deprived of his
 ---pagebreak--- 22. 9. 78                           Official Journal of the European Communities                           No C 225/11
   office only if, in the opinion of the Court of                 duties for a foreseeable period of three months or
   Justice, he no longer fulfils the obligations arising          more shall for such period be seconded in the
   from his office or satisfies the requirements for              interests of the service as provided in paragraph 1.
   appointment.
                                                                  An alternate judge who replaces a judge for less
                                                                  than three months shall be granted special leave
                         Article 11                               by his institution for the period required for the
                                                                  discharge of his duties on the Tribunal. He shall
                                                                  then be entitled to reimbursement of any travel
    1.    The members of the Tribunal, including the              and accommodation costs as provided in Articles
   Vice-President and the alternate judges when                   11 to 14 of Annex VII to the Staff Regulations.
   replacing a member, and the official appointed to
   act as Registrar shall be immune from legal
   proceedings in respect of acts performed by them
   in their official capacity, including words spoken                                   Article 13
   or written. They shall continue to enjoy such
   immunity after they have ceased to hold office.
                                                                  The Council, acting by a qualified majority, shall
                                                                  determine the emoluments of members of the
   The Court, after hearing the person concerned,                 Tribunal.'
   may waive the immunity.
   Where immunity has been waived and criminal                                         Article 2
  proceedings are instituted against a member of the
   Tribunal or the official appointed to act as                The Conditions of Employment of other servants of
   Registrar, the person concerned may be tried only           the European Communities are amended as follows:
   by the court competent to judge members of
   ordinary courts of first instance in the capital city
   of a Member State.                                          1. In the first paragraph of Article 54, 'Article 11 to
                                                                  25' is replaced by 'Article 11 to 25a'.
  2.     Subject to paragraph 1, Articles 12 to 15 of
  the Protocol on the Privileges and Immunities of            2. In Article 83, 'Article 23 and the second paragraph
  the European Communities shall apply to the                     of Article 25' is replaced by 'Article 23, the second
  President and the Vice-President of the Tribunal.               paragraph of Article 25 and Article 25a'; and '90
                                                                  and 91' is replaced by '90, 91 and 91a'.
   3.    The privileges, immunities and facilities thus
   conferred are granted solely in the interest of the
   Comunities.                                                                         Article 3
  The Court of Justice shall waive immunity                   The jurisdiction of the Administrative Tribunal
  wherever it considers that such waiver is not               established by this Regulation may, by a Regulation
   contrary to the interests of the Communities.              of the Council on a proposition of the Commission
                                                              be extended to disputes between its Staff and an
                                                              organization not being an institution or other body in
                                                              the sense of Articles 1 and 2 of the Staff Regulations
                        Article 12                            provided that such disputes are within the
                                                              jurisdiction of the Court of Justice.
   1.    The judges shall for their full term of office
   be seconded in the interests of the service by their
   original institution to the Court of Justice, and                                    Article 4
   Article 38 of the Staff Regulations shall apply
   accordingly.
                                                              This Regulation shall enter into force on the day
                                                              following its publication in the Official Journal of the
  2.     An alternate judge who is called upon to              European Communities. It shall take effect on the date
   replace a judge who is unable to discharge his             when the President of the Court of Justice declares
 ---pagebreak--- No C 225/12                       Official Journal of the European Communities                            22. 9. 78
that the Administrative         Tribunal    has   been       Regulation takes effect shall remain applicable to
constituted.                                                 requests and complaints lodged before that date.
The time limits set in Articles 90 and 91 of the Staff       This Regulation shall be binding in its entirety and
Regulations as applying before the date on which this        directly applicable in all Member States.