CELEX: 62001TJ0045(01)
Language: en
Date: 2007-07-12
Title: Judgment of the General Court (First Chamber) of 12 July 2007.#Stephen G. Sanders and Others v European Commission.#Case T-45/01.

Case T-45/01
      Stephen G. Sanders and Others 
      v
      Commission of the European Communities
      (Staff employed at the JET Joint Undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage sustained)
      Judgment of the Court of First Instance (First Chamber), 12 July 2007 
      Summary of the Judgment
      1.     Procedure – Introduction of new pleas during the proceedings 
      (Rules of Procedure of the Court of First Instance, Art. 44)
      2.     Officials – Actions – Unlimited jurisdiction
      3.     Officials – Actions – Unlimited jurisdiction
      4.     Officials – Actions – Unlimited jurisdiction
      1.     Claims with supporting figures lodged in a compensation action, after the delivery of an interlocutory judgment in which the
         Court of First Instance ordered the Community to make good the loss suffered by staff members of an EAEC joint undertaking
         by reason of the application of a legal status different from that of members of the temporary staff, amended to take account
         of the method for calculating the loss suffered laid down in the interlocutory judgment, cannot be held inadmissible since
         they represent a permissible amplification of the claims contained in the application, especially inasmuch as, first, the
         Court of First Instance determined the criteria necessary in order to calculate the damage for the first time in its interlocutory
         judgment and, second, the exact composition of the damage and the precise method of calculating the compensation payable had
         not yet been debated.
      
      Since the interlocutory judgment laid down the period for which compensation is due, the elements which go to make it up and
         the method to be followed in determining the exact amount of damages accruing to each applicant, it must necessarily be possible
         to adjust the quantum of the individual claims of each applicant after that judgment.
      
      (see paras 21-22)
      2.     In a compensation action, after the delivery of an interlocutory judgment in which the Court of First Instance ordered the
         Community to make good the loss suffered by staff members of the Joint European Torus (JET) Joint Undertaking by reason of
         the application of a legal status different from that of members of the temporary staff, the classification in grade and step
         of each applicant at the beginning of the liability period must be decided in the light of his actual recruitment, the said
         period lasting, for each applicant, for five years from the effective date of the earliest contract concluded or renewed with
         the undertaking, that date being no more than five years before the submission of his request for compensation.
      
      Whilst the Court of First Instance limited each applicant’s right to compensation to a period of no more than five years,
         it nevertheless held that, from the outset, that is to say, from their first employment, the parties concerned should have
         been recruited as temporary staff, the unlawful conduct having persisted throughout the duration of the joint undertaking.
         Consequently, the situation of each applicant at the start of the liability period must not be deemed equivalent to that on
         first recruitment, but dealt with having regard to the fact that, from his first engagement as a member of the contract staff,
         the party concerned should have been recruited as a member of the temporary staff, which means taking into account, where
         appropriate, the ‘career’ he had up to the start of the liability period. Such a method of ‘career reconstruction’ must include
         the promotions from which each applicant could have benefited.
      
      Concerning promotions during the liability period, it is in relation to the situation of the actual members of the project
         team at JET that the Court of First Instance considered that the applicants had been kept in a legal position in which they
         suffered discrimination constituting a culpable illegality and that they had, consequently, suffered loss. Consequently, the
         ‘comparable position’ of temporary staff members of the EAEC which must serve as the point of comparison in order to determine
         the career progressions from which the applicants would have benefited is that – where appropriate more favourable – of the
         actual members of the project team at JET.
      
      (see paras 49-51, 65, 68)
      3.     In an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by
         staff members of the Joint European Torus (JET) Joint Undertaking by reason of the application of a legal status different
         from that of members of the temporary staff, the Court of First Instance held the applicants’ loss lay in the difference between
         the salaries and related benefits which the persons concerned would have received if they had worked for the JET project as
         members of the temporary staff and the salaries and related benefits which they actually received as members of the contract
         staff.
      
      It follows, first, that in order to determine the net Community income that each applicant would have received during the
         liability period determined by the Court of First Instance if he had been recruited as a member of the temporary staff, it
         is necessary to take into account all the advantages to which the party concerned would have been entitled, having regard
         to the criteria concerning his personal and professional situation in respect of which he was able to provide written evidence.
         Conversely, it is not necessary to include the claims for expenses which would have been received for missions, since at JET
         all subsistence costs were reimbursed, whilst there was little or no daily allowance. Secondly, in order to determine the
         net national revenue received by each applicant as a member of the contract staff during the liability period, it is necessary
         to take into account the entire salary that the parties concerned received on that basis, in particular, the daily allowance
         which certain of the applicants may have received for having to commute to the JET premises.
      
      (see paras 77-79)
      4.     In an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by
         staff members of the Joint European Torus (JET) Joint Undertaking by reason of the application of a legal status different
         from that of members of the temporary staff, the Court of First Instance held that, from the outset, the applicants should
         have been recruited as temporary staff and that the unlawful conduct lasted longer than the liability period determined by
         the Court of First Instance. That finding necessarily entails account being taken of the fact that the applicants were able
         to acquire pension rights for the entire period that each of them actually worked at JET, but compensation for any such rights
         is limited to the liability period.
      
      Consequently, in order to determine that part of the damages corresponding to pension rights, it is necessary to consider,
         for each of the applicants, the date of their first actual recruitment at JET, where appropriate before the liability period,
         the damages being due in respect of the loss of pension rights for a maximum of five years corresponding to the liability
         period. Those five years do not therefore constitute the only years of entitlement to rights. It is the whole period of employment
         for each applicant at JET which entitles him to pension rights, the respective rights then being reduced in proportion to
         the ratio of the liability period to his total period of employment.
      
      Moreover, it is necessary to consider whether the damages due in respect of pension rights may not be lower than the actuarial
         value of the reserves built up in the name of each applicant by workers’ and employers’ contributions in respect of the maximum
         of five years corresponding to the liability period.
      
      Where, conversely, an applicant, because in particular he has worked at JET for fewer than 10 years, would not in any event,
         under the provisions of the Staff Regulations, be entitled to a service pension but only to a severance grant, compensation
         in respect of the loss of that grant, reduced in proportion to the ratio of the liability period to his total period of employment,
         constitutes the alternative which must necessarily be granted to him.
      
      (see paras 90-93)
JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)
      12 July 2007 (*)
      
      (Staff employed at the JET Joint Undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage sustained)
      In Case T‑45/01,
      Stephen G. Sanders, residing in Oxfordshire (United Kingdom) and the 94 applicants whose names appear in the annex, represented initially by
         P. Roth QC, I. Hutton, E. Mitrophanous and A. Howard, Barristers, and subsequently by P. Roth QC, I. Hutton and B. Lask, Barristers,
      
      applicants,
      v
      Commission of the European Communities, represented by J. Currall, acting as Agent, 
      
      defendant,
      supported by
      Council 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 to determine pursuant to the judgment of the Court of First Instance of 5 October 2004 in Case T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315 the amount of compensation due for the financial loss sustained by each of the applicants as a result
         of the fact that they were not recruited as members of the temporary staff of the European Communities for 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 of the Chamber, M. Jaeger and H. Legal, Judges,
      Registrar: C. Kristensen, Administrator,
      having regard to the written procedure and further to the hearing on 20 March 2007,
      gives the following
      Judgment
       Background to the dispute and procedure
      1       By judgment of 5 October 2004 in Case T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315 (‘the interlocutory judgment’), the Court of First Instance held that, in failing, in breach of the Statutes
         of the Joint European Torus (JET) Joint Undertaking, to offer the applicants contracts as members of the temporary staff,
         the Commission had committed an act of culpable illegality such as to give rise to the liability of the European Community,
         that that unlawful conduct had resulted in the loss to them of a genuine chance of recruitment as members of the temporary
         staff and that the applicants’ loss lies in the difference between the salaries, related benefits and pension rights which
         the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary staff
         and the salaries, related benefits and pension rights which they actually received or acquired as members of the contract
         staff (paragraphs 142, 158 and 167 of the interlocutory judgment).
      
      2       However, the Court of First Instance found that the applicants should have submitted their requests for compensation within
         a reasonable period, which cannot exceed five years from the time they became aware of the discrimination they complain of,
         and held that the damages due should be calculated, for each applicant, from the effective date of the earliest contract concluded
         or renewed with the applicant in each case, that date being no more than five years before the submission of his request for
         compensation to the Commission (paragraph 72 of the interlocutory judgment).
      
      3       Since the Court of First Instance was not in a position to determine the damages due to each of the applicants, the interlocutory
         judgment (paragraph 170) fixed the principles and criteria on the basis of which the parties were called upon to seek a settlement,
         failing which they were to put their submissions on the quantum of damages before the Court of First Instance.
      
      4       Accordingly, the parties were to:
      (1)      determine the post and grade which each applicant would have held, on the basis of the functions he carried out, if he had
         been offered a contract as a member of the temporary staff on the effective date of the earliest contract concluded or renewed,
         that date not to be earlier than five years from the presentation of the request for compensation (paragraphs 169 and 171
         of the interlocutory judgment);
      
      (2)      reconstruct the career of the person concerned from the time of his recruitment or the start of the abovementioned five-year
         period at the earliest, taking into account:
      
      –       the average increase in salary for the equivalent post and grade of a member of the staff of the European Atomic Energy Community
         (EAEC), working for JET if applicable;
      
      –       any promotions the person concerned may have had during that period in the light of the grade and post selected, on the basis
         of the average number of promotions of members of the temporary staff of the EAEC in a comparable position (paragraph 172
         of the interlocutory judgment);
      
      (3)       make the comparison between the situation of a member of the temporary staff of the Communities and that of a member of the
         contract staff in respect of net amounts, net of contributions, deductions or other levies charged under the applicable legislation
         (paragraph 173 of the interlocutory judgment).
      
      5       The Court of First Instance held that the liability period runs from the effective date of the earliest contract concluded
         or renewed in the five‑year period before the submission of the request for compensation and ends either on the date on which
         the person concerned stopped working for the JET project, if that was before the end of the project on 31 December 1999, or
         on that date if he worked for the JET project until its conclusion (paragraph 174 of the interlocutory judgment).
      
      6       Finally, the Court of First Instance held that, since the damages compensate for the loss of salary and related benefits covered
         by the Protocol on the Privileges and Immunities of the European Communities and are calculated taking into account Community
         tax, they are net of any taxation and cannot be subject to deductions of national tax (paragraph 176 of the interlocutory
         judgment).
      
      7       Being unable to reach an agreement on all the points relating to the precise determination of the damages due to each of the
         applicants, the parties sent their submissions on the quantum of damages to the Court of First Instance on 28 October 2005.
      
      8       By measure of organisation of procedure notified on 19 December 2006, the Court of First Instance requested from the parties,
         in accordance with Article 64 of its Rules of Procedure, information and clarification concerning the points of difference
         which remained between them with regard to the assessment of the damage suffered by each of the applicants.
      
      9       The applicants replied to the Court of First Instance’s request by letter lodged at the Registry on 20 February 2007. The
         Commission made its observations known on the applicants’ replies by letter lodged at the Registry on 1 March 2007.
      
      10     In their replies to the Court of First Instance’s request, the parties, who set out their submissions on the quantum of damages
         following the measure of organisation of procedure, indicated that they had resolved certain of their disagreements and highlighted
         the points which were still at issue.
      
      11     By order of the President of the First Chamber of the Court of First Instance of 7 March 2007, the application of the United
         Kingdom of Great Britain and Northern Ireland to intervene presented on 27 February 2007 was dismissed as being out of time
         in accordance with the combined provisions of Articles 115(1) and 116(6) of the Rules of Procedure.
      
      12     At the hearing on 20 March 2007, the parties presented their oral arguments and their answers to the questions put by the
         Court of First Instance. The Commission submitted an amended version of the annexes to its observations of 1 March 2007.
      
      13     At the end of the hearing, the President granted the applicants one week in which to submit any amendments in the light of
         the documents submitted at the hearing by the Commission. On 27 March 2007, following an application from the applicants,
         the President granted an extension of the time to the Commission and to the applicants until 30 March and 3 April 2007 respectively
         to enable the Commission to make final corrections to its submissions on the quantum of damages and the applicants to formulate
         their observations thereon.
      
      14     The oral procedure was closed on 17 April 2007.
       Submissions of the parties
      15     The applicants claim that the Court of First Instance should:
      –       order the Commission to compensate them for their loss of earnings and other benefits caused by the breaches of Community
         law committed in respect of them, by paying a total amount for all the applicants of GBP 27 744 467, as at 31 October 2005;
      
      –       order the Commission to pay the costs.
      16     The Commission, supported by the Council, contends that the Court of First Instance should: 
      –       order it to compensate the applicants pursuant to the interlocutory judgment in accordance with its observations, in the total
         amount for all the applicants of GBP 5 767 682, as at 31 October 2005;
      
      –       order it to pay half the applicants’ costs.
       Law
       Scope of the dispute rationae personae
      17     In reply to the questions asked by the Court of First Instance at the hearing, the applicants stated that two of them – M. Organ
         and M.R. Sibbald – were not submitting claims for damages.
      
      18     It is consequently necessary for the Court of First Instance to take formal note of this and to find that 93 of the 95 applicants
         are submitting claims for damages.
      
      19     The applicants have moreover indicated that Ms S. Rivers, who got married in the course of the proceedings, is referred to
         in the claims for damages as Ms S. Playle. To avoid all risk of confusion, in the present judgment she is referred to as Ms
         Rivers‑Playle.
      
       On the quantum of the claims for damages
      20     Without raising a plea of inadmissibility, the Commission contends that the applicants’ claims for damages for the liability
         period laid down in the interlocutory judgment (1995 to 1999) are more than one and a half times greater than their original
         claims. It considers that, although those claims have been adjusted by the applicants in the light, inter alia, of information
         which it provided to them in the course of their discussions, that substantial increase in the applicants’ claims may fail
         to satisfy the provisions of Article 44 of the Rules of Procedure.
      
      21     As to the principle, it is necessary to point out that the Court of Justice allowed an increase in the original claims in
         a case in which an interlocutory judgment had laid down the method for calculating the loss suffered and in which an expert’s
         report had been ordered, holding those amended claims to be admissible. It found that they represented a permissible, indeed
         necessary, amplification of the claims contained in the application, especially inasmuch as, first, the Court of Justice determined
         the criteria necessary in order to calculate the damage for the first time in its interlocutory judgment and, second, the
         exact composition of the damage and the precise method of calculating the compensation payable had not yet been debated. The
         Court of Justice added that it had ordered the parties to submit statements of their views with supporting figures in the
         event of their failing to reach agreement on the quantum of damages. It held that that order would be pointless and meaningless
         if, following delivery of that judgment, the parties were precluded from formulating claims different from those contained
         in their application (Joined Cases C‑104/89 and C‑37/90 Mulder and Others v Council and Commission [2000] ECR I-203, paragraphs 38 to 40).
      
      22     Similarly, in the present case, since the interlocutory judgment laid down the period for which compensation is due, the elements
         which go to make it up and the method to be followed in determining the exact amount of damages accruing to each applicant,
         it must necessarily be possible to adjust the quantum of the individual claims of each applicant after that judgment.
      
      23     Moreover, according to the court file, the applicants’ claims for damages of 31 October 2005, revised in the light of the
         grounds of the interlocutory judgment, are lower and not higher than their original claims, if one takes into consideration
         their total amount and not, as the defendant has done, only that part of the original claim which relates to the liability
         period.
      
      24     It follows from the foregoing that the Commission’s observation on the quantum of the final claims must be dismissed as irrelevant.
       Preliminary observations 
      25     The purpose of the present judgment is to determine the damages due to the applicants in compensation for the loss arising
         from the unlawful conduct found by the interlocutory judgment, in accordance with the principles and criteria laid down therein,
         as set out at paragraphs 1 to 6 above, where the parties have not been able to reach a complete agreement on all the points
         at issue for the purpose of putting into effect the principles and criteria laid down by the Court of First Instance.
      
      26     It is necessary to state at the outset that the interlocutory judgment has not been challenged (i) on the principle of recognition
         of Community liability owing to the unlawful conduct found, (ii) on that of the recognition of the loss suffered by the applicants,
         whose rights to compensation were limited to a maximum of five years, or (iii) as regards the principles and criteria which
         are to be used to determine the damages due to each of the applicants. That judgment has therefore become definitive on all
         those points, which have acquired the status of res judicata and are binding for the final resolution of the dispute (judgment
         in Case C-281/89 Italy v Commission [1991] ECR I‑347, paragraph 14; and orders in Case C‑397/95 P Coussios v Commission [1996] ECR I‑3873, paragraph 25; and Case C‑277/95 P Lenz v Commission [1996] ECR I‑6109, paragraphs 48 to 54; and, as to the res judicata authority of an interlocutory judgment, Mulder and Others v Council and Commission, paragraphs 54 to 56). The Commission has, moreover, pointed out in its abovementioned observations of 1 March 2007, that
         neither it nor the applicants have brought an appeal before the Court of Justice against the interlocutory judgment of 5 October
         2004 and that that judgment has therefore acquired the definitive status of res judicata.
      
      27     Moreover, as the dispute stood at the close of the oral procedure, it was apparent that, in comparison with their respective
         claims of 28 October 2005, the parties had reached agreement on a certain number of general or specific questions concerning
         the determination of the damages due to each applicant in the light of the principles and criteria laid down by the interlocutory
         judgment.
      
      28     It appears that the parties are agreed on the general methodology for calculating the applicants’ losses, the identification
         of the main components of income, whether Community or national, to be taken into account, the application of simple interest
         at a rate of 5.25% to the final amount of the damages due to the applicants, and the fact that the damages received by each
         of them are not taxable under United Kingdom legislation, the question of the tax regime applicable to the damages having
         been expressly and definitively dealt with by the interlocutory judgment (see paragraph 6 above). It is also apparent from
         the court file that the parties came to an agreement that two of the applicants, D. Hamilton and T. Price, who were unemployed
         after leaving JET, were entitled to an allowance in that respect, in accordance with the applicable rules.
      
      29     The submissions lodged by the parties on 28 October 2005 state that differences remain regarding six points necessary for
         a precise determination of the damages due to each applicant and which the parties submit to the Court of First Instance for
         a ruling. They concern, first, the start of the liability period for each applicant (see paragraph 5 above), second, the grade
         and step to be determined for each of them at the start of the liability period (see paragraph 4 above), third, the promotions
         from which the applicants would have benefited (see paragraph 4 above), fourth, the related benefits linked to the salaries
         which they would have been able to receive (see paragraph 1 above), fifth, the contributions, deductions and other charges
         which must be taken into consideration in order to determine the net revenue of a member of the temporary staff and that of
         a member of the contract staff (see paragraph 4 above) and, sixth, the pension rights which each of the applicants could claim
         (see paragraph 1 above).
      
      30     Following the measure of organisation of procedure notified on 19 December 2006, the parties reached further agreement on
         certain issues. They came to an agreement in relation to, first, the start date of the liability period and, second, the contributions,
         deductions and other charges to take into account in order to determine the income actually received by the parties concerned
         in their capacity as contract staff. More or less significant differences remain however concerning other points in dispute.
      
      31     Moreover, the parties, whose views converge in that respect, set out in their pleadings and at the hearing their difficulties
         in securing acceptance by the United Kingdom tax authorities that, pursuant to the Court of First Instance’s finding in its
         interlocutory judgment, the damages to be received by the applicants cannot be subject to the deduction of national tax, those
         authorities having indicated their intention to tax, if not the principal, then at least the interest accruing on the damages.
         The applicants and the Commission claim that the Court of First Instance should give a specific ruling on the question of
         the exemption from tax of the damages, including both principal and interest.
      
      32     It is necessary to examine the six headings set out at paragraph 29 above one after the other, highlighting the points of
         disagreement and, also, the question of the tax regime for interest due on the damages which the applicants are to receive.
      
       Points of agreement
      
       The start of the liability period 
      33     The Court of First Instance held in the interlocutory judgment that the damages due should be calculated, for each applicant,
         from the effective date of the earliest contract concluded or renewed with the applicant in each case, that date being no
         more than five years before the submission of his request for compensation to the Commission and falling between 12 November
         1994 and 16 February 1995 (paragraphs 84 and 169 of the interlocutory judgment). Moreover, it is clear from the judgment (paragraph
         174) that the liability period ends on the date on which the applicant concerned stopped working for the JET project if that
         was before the end of the project on 31 December 1999, or on that date if he worked for the JET project until its conclusion.
      
      34     It is clear from the parties’ replies to the measure of organisation of procedure referred to at paragraph 8 above that the
         parties reached an agreement, in accordance with the reasons stated in the interlocutory judgment, as set out above, concerning
         the start date of the liability period and the length of that period for each applicant.
      
      35     It is necessary for the Court of First Instance to take formal note of the agreement reached by the parties and to declare
         the date fixing the start of the liability period for each of the applicants, as indicated in the second column of Annex 2
         to the present judgment.
      
       Contributions, deductions and other charges
      36     The Court of First Instance held in the interlocutory judgment (paragraph 173) that, in order to determine the damage suffered,
         the comparison between the position of a member of the temporary staff of the Communities and that of a member of the contract
         staff, such as each of the applicants, must be made in respect of net amounts, net of contributions, deductions or other levies
         charged under the applicable legislation.
      
      37     Further to the measure of organisation of procedure, in accordance with the abovementioned grounds of the interlocutory judgment,
         for the calculation of the income received as contract staff, the applicants deducted the amounts initially included in their
         claims of 28 October 2005 corresponding to pension fund payments, except for eight of them whose insurance policies, comparable
         to the regime under the Staff Regulations, covered the risk of accidents and occupational diseases. The Commission accepted
         that methodology.
      
      38     It is necessary for the Court of First Instance to take formal note of that in order to make its finding as to the net revenue
         that each applicant actually received as a member of the contract staff during the liability period.
      
       Points of disagreement
      
       Grade and step at the start of the liability period
      – Arguments of the parties
      39     The applicants assert that the grade and step are to be determined, not only taking into account their academic qualifications
         and their previous professional experience, but also on the basis of the career of each person at JET from the moment he in
         fact started working there, which, for a number of them, will be before the start of the liability period. They are of the
         view that, by its interlocutory judgment, the Court of First Instance laid down a test of functional equivalence between posts
         held as contract staff and those held as temporary staff. The applicants state that, in order to establish that functional
         equivalence, they consulted a memorandum of the Head of Contracts at JET, Mr Byrne, of 25 August 1989. 
      
      40     The applicants assert, in reliance on the interlocutory judgment, that, since they were in fact recruited to work for JET,
         the Commission cannot require the same level of evidence today – which would in certain cases be impossible to produce – as
         would have been required in the actual recruitment exercise. Moreover, they state that each of them has provided a formal
         witness statement attesting to his previous career and curriculum vitae.
      
      41     The Commission maintains that the grade and step are to be determined at the effective date of the earliest contract included
         within the liability period, taking into account the qualifications and previous professional experience of each applicant
         as if it were a first recruitment. It is of the view that the applicants must produce the same evidence, concerning qualifications
         and professional experience as if the applicant concerned had actually been recruited. The defendant contends that it follows
         from the interlocutory judgment that the Community incurred liability and damages are payable in respect of a maximum period
         of five years and that earlier contracts cannot be taken into consideration.
      
      42     The Commission states moreover that the relevant documents, which it used to determine posts and grades, are, first, the Commission
         decision of 11 October 1984 on criteria applicable to the classification by grade and step upon recruitment of scientific
         and technical staff and, second, the Commission decision, which came into force on 1 September 1983, concerning the criteria
         applicable to appointment in grade and classification in step on recruitment, as regards administrative staff.
      
      43     The defendant also raises the question of the admissibility of the evidence which was sent to it by the applicants, mostly
         in July, or even in September or October 2005, in the light of Article 44 of the Rules of Procedure.
      
      44     In addition, it is clear from the parties’ replies to the measure of organisation of procedure that they partly agree on certain
         points. First, the parties agree that the classification C 3‑B 5/B 3, which was used at JET, applies to the 22 applicants
         concerned. Second, the Commission agrees that the academic qualification of ‘Chartered Engineer’, which concerns five of the
         applicants, must be accepted for entry to category A. However, the Commission objects to the classification of the holders
         of ‘Ordinary National Diploma’ and ‘City & Guilds Part III’ qualifications in category B.
      
      –       Findings of the Court
      45     As a preliminary point, as to the evidence concerning the applicants’ qualifications and professional experience which is
         of assistance in determining the grade and step of each of the applicants at the start of the liability period, it must be
         observed that, in its interlocutory judgment, the Court of First Instance held that, in view of their qualifications in particular,
         the applicants had genuine prospects of being appointed as members of the temporary staff (paragraphs 156 and 158 of the interlocutory
         judgment). Therefore, in order to determine the damages due to each of the applicants, it is not necessary to examine whether
         at the start date of the liability period the party concerned fulfilled the conditions for such recruitment. It follows from
         the grounds of the interlocutory judgment that the level of evidence required in order to determine the classification of
         each applicant cannot be equivalent to that for an actual recruitment, as the Commission maintains.
      
      46     Regarding the defendant’s allegation that certain evidence which the applicants sent to it between the months of July and
         October 2005 was out of time under Article 44 of the Rules of Procedure, the admissibility of that evidence cannot be challenged
         on the facts of the present case.
      
      47     In fact, it was the grounds of the interlocutory judgment, ruling on the principle of Community liability, which defined the
         loss suffered by the applicants, fixed the method to follow in determining the amount thereof and which, by referring in particular
         to the academic qualifications and professional experience and to the functions carried out at JET, enabled the parties to
         identify the relevant factors for the determination of the damages due. Having regard to the extensions of time requested
         by the applicants in respect of which the defendant did not raise an objection and the fact that the defendant allowed the
         applicants access to the JET archives only at the end of December 2005, it is not possible to challenge the admissibility
         of any evidence whatsoever.
      
      48     As to the classification in grade and step of each of the applicants at the start of the liability period, it is necessary
         to point out that, in the interlocutory judgment, the Court of First Instance held that the posts and the qualifications of
         the applicants, as listed by the Commission, appear comparable, in terms of their nature and level, to those of the actual
         members of the project team. It stated (paragraph 121) that the Commission admitted that there was no fundamental difference
         between the members as such of the project team and the applicants, the qualifications and professional experience of both
         being similar. It also found (paragraph 122) that similarity of functions to be confirmed by the JET establishment plan.
      
      49     Thus, it follows from the interlocutory judgment (paragraphs 169 and 171) that the post, the grade and the step to be determined
         for each applicant must correspond to the functions they carried out at JET at the effective date of the earliest contract
         concluded or renewed within the liability period, the functions at issue being those which the party concerned carried out
         at JET at that date, if he was already working there previously, which is the case for most of the applicants, or rather the
         functions with a view to which he at that time started to work there. The classification of each applicant must therefore
         be decided in the light of his actual recruitment by JET, which was, generally, before the start date of the liability period.
      
      50     Whilst the Court of First Instance limited each applicant’s right to compensation to a period of no more than five years,
         it nevertheless held that, from the outset, that is to say, from their first employment, the parties concerned should have
         been recruited as temporary staff, the unlawful conduct having persisted throughout the duration of JET (paragraphs 128 and
         140 of the interlocutory judgment). Contrary to the Commission’s contention, the finding of unlawful conduct relates to the
         entire duration of the employment at JET but compensation is due, on the grounds set out in the interlocutory judgment (paragraphs
         59 to 85), only for the liability period defined thereby.
      
      51     Consequently, the situation of each applicant at the start of the liability period must not be deemed equivalent to that on
         first recruitment, but dealt with having regard to the fact that, from his first engagement as a member of the contract staff,
         the party concerned should have been recruited as a member of the temporary staff, which means taking into account, where
         appropriate, the ‘career’ he had up to the start of the liability period, in order to determine the classification which corresponds
         to the functions carried out by each of them at the start of that period.
      
      52     Moreover, contrary to the Commission’s contention, taking into account the earlier ‘career’ at JET does not, strictly speaking,
         mean reconstructing that career, but rather taking into account, where appropriate, the classification which the party concerned
         had reached as a member of the contract staff at JET, as follows from the interlocutory judgment, which refers to the functions
         carried out by each applicant at the start of the liability period, in order to determine the post and the grade of each applicant
         (paragraphs 169 and 171), it being recalled that the Court of First Instance found an equivalence between the posts, the qualifications
         and the professional experience of the applicants and the actual members of the project team (paragraphs 121 and 122 of the
         interlocutory judgment). The classification to be determined at the start of the liability period must consequently take into
         account that functional similarity.
      
      53     In order to determine the classification of each of the applicants at the start of the liability period, all the relevant
         evidence available mentioned by the parties must be used, namely, first, the memorandum of the Head of Contracts at JET of
         25 August 1989, which established a correspondence between the grades of members of the contract staff and eight grades relating
         to staff of the EAEC, and the classification of members of the contract staff at JET as it appears in the register for such
         staff for the year 1994 and, secondly, the Commission decision of 11 October 1984 on criteria applicable to the classification
         by grade and step upon recruitment of scientific and technical staff and the Commission decision, which came into force 1
         September 1983, concerning the criteria applicable to appointment in grade and classification in step on recruitment, as regards
         administrative staff.
      
      54     Under those different documents, the classification of each of the applicants in grade and step at the start of the liability
         period is determined in the following way.
      
      55     First, it is necessary to determine the classification of each applicant as a member of the contract staff on the effective
         date of the earliest contract concluded or renewed in the period selected, as can be established from the memorandum of the
         Head of Contracts at JET of 25 August 1989 and from the register of members of the contract staff at JET for the year 1994.
         Except in the case of a first recruitment, that classification as a member of the contract staff will take into account the
         evolution of the personal situation of the staff members concerned from their initial recruitment to the date of renewal of
         their contract starting the liability period, in accordance with the principles set out above.
      
      56     Secondly, it is necessary to determine the corresponding grade and step of a member of staff of the EAEC equivalent to that
         classification, based on the Commission decision of 11 October 1984 on criteria applicable to the classification by grade
         and step upon recruitment of scientific and technical staff and the Commission decision, which came into force on 1 September
         1983, concerning the criteria applicable to appointment in grade and classification in step on recruitment, as regards administrative
         staff.
      
      57     Moreover, it is necessary to take formal note of the agreement of the parties concerning the classification of the 22 applicants
         concerned in the C 3‑B 5/B 3 career bracket and the fact that the qualification ‘Chartered Engineer’ entitles the holder to
         occupy a category A post. ‘Ordinary National Diploma’ and ‘City & Guilds Part III’ qualifications must also be held to give
         the holder access to category B posts, the applicants having adduced evidence from the competent United Kingdom authorities
         that these qualifications are at the level required for access to that category, which the defendant does not challenge.
      
      58     In view of the foregoing the classification in grade and step of each of the applicants at the start of the liability period
         is to be determined as indicated in the third column of Annex 2 to the present judgment.
      
       Promotions 
      – Arguments of the parties
      59     The applicants assert that promotion rates at JET were particularly favourable, which should in the present case imply, first,
         a move to the next higher grade on the first occasion the step increase takes the salary above step 1 in the next grade, except
         in three cases in respect of which they concur with the Commission’s position, namely, that it was impossible to be promoted
         from B to A grade, from A5 to A4 grade and from A4 to A3 grade. Secondly, allowance should be made for average career promotion
         by adding one promotion every five years.
      
      60     The close correlation between the grades claimed by the applicants and the grades in the JET register of contract staff shows
         that the method proposed is a good one. It also allows appointment to a post of responsibility to be expressed as a promotion.
      
      61     The Commission submits that a change of responsibilities does not automatically lead to a promotion, since no automatic link
         exists between grade and function and an official can move from the post of administrator to that of Group leader without
         promotion.
      
      62     In reply to the measure of organisation of procedure, the parties indicated that they had come to an agreement on a rate of
         promotion of 20% corresponding to one promotion every five years and that two of the applicants – M. Browne and J. Tait –
         attained Grade A4 from 1998, when they became Group Leaders.
      
      63     The Commission continues to disagree as to the way the applicants have applied that rate to the period prior to the liability
         period in accordance with their methodology, which consists of taking into account the career that they had had at JET before
         the liability period in order to determine the classification at the start of that period.
      
      – Findings of the Court
      64     At the outset it is necessary to state that the point of disagreement raised by the Commission relates not to the effect of
         the promotions from which the applicants would have benefited during the liability period at the rate agreed between the parties
         of 20% per annum but to the application of that rate in order to determine the initial classification of each, at the start
         of the liability period, by reconstructing, where appropriate, the earlier career of the party concerned at JET. Those criticisms
         concern therefore the determination of the grade and the step at the start of the liability period and are unrelated to the
         promotions during the period which is being reconstructed here.
      
      65     As regards the taking into consideration of those promotions which took place before the liability period, which is thus not
         in issue here, it must nonetheless be observed, in the light of the defendant’s concerns, that it is clear that, since it
         has been found (see paragraph 50 et seq. above), in accordance with the grounds of the interlocutory judgment, that in order
         to determine the classification at the start of the liability period of each applicant it is necessary to take into account
         the career of the party concerned from this actual recruitment, that method of ‘career reconstruction’ must include the promotions
         from which he could have benefited. The parties having accepted that the rate of promotion at JET was 20%, the applicants
         were logically entitled to use that rate in order to make that initial ‘career reconstruction’, for the purpose of determining
         the grade and the step of each applicant at the start of the liability period.
      
      66     As regards promotions during the liability period, the Court of First Instance held in the interlocutory judgment (paragraph
         172) that the parties should agree on the reconstruction of the careers of each of the applicants from the date of recruitment
         or the start of the five‑year period for which damages are due, taking into account the average increase in salary for the
         equivalent post and grade of a member of the EAEC staff, working for JET if applicable, and any promotions the person concerned
         may have had during that period in the light of the grade and post selected, on the basis of the average number of promotions
         of members of the temporary staff of the EAEC in a comparable position.
      
      67     It is clear from the interlocutory judgment that the reconstruction of the potential promotions during the liability period
         must be determined in the light of the grade and the step selected at the start of that period at the earliest, by applying
         the average promotions granted to members of the temporary staff of the EAEC in a comparable position, in other words working
         at JET, in accordance with the promotion practices in operation at JET.
      
      68     In the light of the situation of the actual members of the project team at JET, the Court of First Instance considered that
         the applicants had been kept in a legal position in which they suffered discrimination constituting a culpable illegality
         (paragraphs 141 and 142 of the interlocutory judgment) and that they had, consequently, suffered loss (paragraphs 167 and
         172 of the interlocutory judgment). Consequently, the ‘comparable position’ which must serve as the point of comparison in
         order to determine the career progressions from which the applicants would have benefited is that – where appropriate more
         favourable – of the actual members of the project team at JET.
      
      69     Any access to posts entailing particular responsibility is not to be taken into account in that calculation since, as the
         Commission contends, no automatic link exists between grade and function and an official can change post without receiving
         a promotion. On the other hand, the reconstructed promotions must include changes of step and grade in accordance with the
         practices at JET.
      
      70     It is therefore necessary to take into account, in accordance with the principles laid down by the interlocutory judgment,
         the reconstructed promotions based on the foregoing grounds in order to determine the net revenue that each applicant would
         have received as a member of the temporary staff during the liability period.
      
       Related benefits 
      – Arguments of the parties
      71     The applicants claim that net revenue actually received by each of them must be calculated net of the amounts they earned
         when they worked during their leave or when they worked overtime, as if each of them had worked the same number of days as
         a member of the temporary staff of the EAEC in an equivalent position without working overtime. They argue that to take account
         of the amounts actually received by the applicants in this way (higher than those received by members of the temporary staff
         of JET) would cancel out any compensation in respect of paid leave and overtime.
      
      72     The Commission contends that the sums received by the applicants for paid holidays and overtime because of the flexibility
         they enjoyed enabling them, unlike members of the temporary staff of the EAEC, to increase their income must be taken into
         account in calculating the income received by the persons concerned as members of the contract staff. As regards the determination
         of the Community income which each of them could have received, it points out that evidence must be adduced that the person
         concerned fulfilled the conditions for that part of the compensation corresponding to certain allowances, such as household
         allowance, child allowance and education allowance.
      
      73     Concerning any missions undertaken by the applicants, the Commission claims that what is at issue is not the reimbursement
         of lost income but the reimbursement of expenses. Concerning daily allowances received by certain applicants who lived far
         away from the JET premises, the defendant contends that the Staff Regulations do not offer an equivalent advantage to members
         of the temporary staff and that the corresponding allowances must be treated for accounting purposes as income actually received
         as members of the contract staff.
      
      74     Further to the measure of organisation of procedure, it is apparent that the parties came to an agreement on the following
         points.
      
      75     As regards paid leave, it is permissible, in view of the fact that the majority of the applicants did not benefit from any,
         to include in the amounts received by the applicants as members of the contract staff the income they earned for having worked
         the same number of hours they would have worked if they had been members of staff of the EAEC.
      
      76     Concerning overtime, the parties have agreed to distinguish the situations of the applicants according to whether they fall
         within category A or categories B and C. First, since members of the staff of the EAEC in category A, unlike the contract
         staff of which the applicants were members, were not paid for overtime performed, the applicants accept the 10% uplift applied
         by the Commission to their national income. Secondly, it is apparent that staff of the EAEC in category B and C received compensation
         for overtime not financially but by way of time off, which now proves impossible to calculate. Consequently, the applicants
         decided not to take overtime into account on either side of the equation (national income and Community income). The Commission
         however continued to apply the uplift of 10% uniformly to the income received by the applicants as contract staff. This therefore
         leads to a divergence in the assessment of that income in the figures submitted by the parties.
      
      –       Findings of the Court
      77     The Court of First Instance held in the interlocutory judgment (paragraph 167) that during the time spent working for the
         JET Joint Undertaking the applicants’ loss lies in the difference between the salaries, related benefits and pension rights
         which the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary
         staff and the salaries, related benefits and pension rights which they had actually received or acquired as members of the
         contract staff.
      
      78     It follows from this, first, that in order to determine the net national income that each applicant would have received during
         the liability period if he had been recruited as a member of the temporary staff, it is necessary to take into account all
         the advantages to which the party concerned would have been entitled, having regard to the criteria concerning his personal
         and professional situation in respect of which he was able to provide written evidence. Conversely, it is not necessary to
         include the claims for expenses which would have been received for missions, the Commission contending in that regard, without
         being contradicted, that, at JET all subsistence costs were reimbursed, whilst there was little or no daily allowance.
      
      79     Secondly, in order to determine the net national revenue received by each applicant as a member of the contract staff during
         the liability period, it is necessary to take into account the entire salary that the parties concerned received on that basis,
         in particular, the daily allowance which certain of the applicants may have received for having to commute to the JET premises.
      
      80     As to paid leave, it is necessary to take into account the agreement reached by the parties and the sums received by the applicants
         for having worked a number of hours equivalent to the working hours which they would have had as staff of the EAEC. 
      
      81     As regards overtime, it is necessary to apply, as the parties have agreed, an uplift of 10% to the income received by the
         parties concerned as contract staff, inasmuch as members of the staff of the EAEC in category A were not paid for overtime
         worked, unlike members of the contract staff such as the applicants.
      
      82     Concerning the applicants who are classified in category B or C, the Court of First Instance notes that the defendant is not
         contending that the applicants’ allegations – to the effect that staff of the EAEC in categories B and C received compensation
         for overtime not financially but by way of time off, the calculation of which now proves impossible – are incorrect. Against
         that background, the most appropriate solution is that submitted by the applicants, namely not to take the overtime into account
         for the purpose of determining either the income received by the applicants as members of the contract staff or the income
         which they would have been paid as members of the temporary staff of the EAEC.
      
      83     Consequently, it is necessary for the Court of First Instance to take formal note of the net income which each applicant would
         have received as a member of the temporary staff in the course of the liability period and that which he actually received
         as a member of the contract staff in the course of the same period, in accordance with the principles stated above regarding
         the related benefits.
      
      84     It follows from the foregoing that the amount of net income received by the members of the contract staff, the amount they
         should have received as members of the temporary staff, the amount of the loss resulting from the difference between these
         two amounts and the accrued amount of the loss resulting from the updating of that last amount to 31 December 1999 are those
         which appear in columns (1), (2), (3) and (4) respectively of Annex 3 to the present judgment.
      
       Pension rights
      – Arguments of the parties
      85     The applicants assert that they are entitled to compensation for loss of pension rights and that that cannot be replaced by
         a severance grant. They state that most of them worked at JET for a longer period than the five years maximum on the basis
         of which damages for each are to be calculated. They consider that the proper approach for determining the pension rights
         at issue is to calculate the cost of an annuity equivalent to the pension that they would have received if they had been treated
         in a lawful manner and to take into account the proportion of that sum corresponding to the liability period.
      
      86     The Commission contends that the applicants are entitled to claim a severance grant only, since the Court of First Instance
         has held that the period of Community liability for non-recruitment giving rise to a duty to compensate is a maximum of five
         years. Granting pension rights in consideration of facts prior to that period, namely that some of the applicants were working
         beforehand at JET, which would require reliance on contracts concluded before the start of the liability period, would go
         against the limitation imposed by the Court of First Instance.
      
      – Findings of the Court
      87     The Court of First Instance held in the interlocutory judgment (paragraph 167) that, during the time spent working for the
         JET Joint Undertaking, the applicants’ loss includes the pension rights which correspond to the difference between the pension
         rights which the persons concerned would have acquired if they had worked for the JET project as members of the temporary
         staff and the pension rights which they actually received or acquired as members of the contract staff.
      
      88     Moreover, the Court of First Instance held that damages must be calculated in respect of a period commencing on the effective
         date of the earliest contract concluded or renewed with the applicant in each case, that date being no more than five years
         before the submission of his request for compensation to the Commission and ending on the date on which the applicant concerned
         stopped working for the JET project if that was before the end of the project on 31 December 1999, or on that date if he worked
         for the JET project until its conclusion (paragraph 174 of the interlocutory judgment).
      
      89     It is absolutely clear from the grounds of the interlocutory judgment that the Court of First Instance expressly recognised
         that the applicants were entitled to compensation in respect of pension rights. Thus, although it may have limited the admissibility
         of the claims for damages to a maximum period of five years from each applicant’s claim for damages, it is not to be inferred
         from this that that element in the damages should in all cases be replaced by a severance grant. The interpretation put forward
         by the Commission in that respect cannot consequently be upheld.
      
      90     As pointed out at paragraph 50 above, the Court of First Instance in the interlocutory judgment held that, from the outset,
         the applicants should have been recruited as temporary staff and that the unlawful conduct lasted longer than the liability
         period. That finding necessarily entails account being taken of the fact that the applicants were able to acquire pension
         rights for the entire period that each of them actually worked at JET, but compensation for any such rights is limited to
         the liability period.
      
      91     Consequently, in order to determine that part of the damages corresponding to pension rights, it is necessary to consider,
         for each of the applicants, the date of their first actual recruitment at JET, where appropriate before the liability period,
         the damages being due in respect of the loss of pension rights for a maximum of five years corresponding to the liability
         period. Those five years do not therefore constitute the only years of entitlement to rights. It is in fact the whole period
         of employment for each applicant at JET which entitles him to pension rights, the respective rights then being reduced in
         proportion to the ratio of the liability period to his total period of employment, in accordance with the grounds stated in
         the interlocutory judgment.
      
      92     Moreover, it is necessary to consider whether the damages due in respect of pension rights may not be lower than the actuarial
         value of the reserves built up in the name of each applicant by workers’ and employers’ contributions in respect of the maximum
         of five years corresponding to the liability period.
      
      93     Where, conversely, an applicant, because in particular he has worked at JET for fewer than 10 years, would not in any event,
         under the provisions of the Staff Regulations, be entitled to a service pension but only to a severance grant, compensation
         in respect of the loss of that grant, reduced in proportion to the ratio of the liability period to his total period of employment,
         constitutes the alternative which must necessarily be granted to him in accordance with the grounds of the interlocutory judgment.
         It is clear from the applicants’ replies to the measure of organisation of procedure that, in their claims at the final stage,
         those amongst them who have worked for less than 10 years at JET are seeking a severance grant in lieu of pension rights.
      
      94     The foregoing assessment is not called into question by the factors which the Commission has relied on.
      95     Although in its judgment in Case C‑262/88 Barber [1990] ECR I‑1889 the Court of Justice limited the temporal effects of the interpretation given to Article 141 EC owing to
         overriding considerations of legal certainty precluding the calling into question of legal situations which have exhausted
         all their effects in the past, that solution does not appear to be relevant to the present case.
      
      96     The facts of the present case, concerning compensation for loss caused by the unlawful conduct by the Community towards the
         applicants, are not comparable to those of that previous case, which raised the problem of the retroactive revision of pension
         schemes throughout the territory of the Community with significant financial implications. Moreover, the defendant has not
         relied on any overriding considerations of legal certainty.
      
      97     In addition, the Commission’s allegation, to the effect that no pension funds existed at JET for the period before the liability
         period and therefore granting pension rights to the applicants in respect of that earlier period would have the effect of
         according them an advantage from which staff of the EAEC employed by JET did not benefit, cannot be upheld either.
      
      98     It follows from the combined provisions of Articles 2 and 39 of the Conditions of Employment of other servants of the European
         Communities, which governs, inter alia, staff of the EAEC, that members of the temporary staff have a right to a service pension
         or a severance grant subject to the conditions laid down in the Staff Regulations of Officials of the European Communities.
         Article 8.5 of the Statutes of the JET annexed to Council Decision 78/471/Euratom of 30 May 1978 on the establishment of the
         ‘Joint European Torus (JET), Joint Undertaking’ (OJ 1978 L 151, p. 10), in the version relevant for the determination of the
         applicants’ pension rights, expressly invokes the Conditions of Employment of other servants of the European Communities in
         respect of the staff recruited as members of the temporary staff, as the applicants should have been. Therefore, even if,
         in practice, the system provided for by the appropriate texts was not complied with for staff of the EAEC employed by JET,
         that regrettable fact cannot be relied on by the defendant in determining the damages due to the applicants as a result of
         its unlawful conduct towards them.
      
      99     Furthermore, although the applicants have been claiming damages in respect of loss of pension rights from the lodging of their
         action in 2001 and the interlocutory judgment expressly held that such damages were recoverable in principle, it must be observed
         that the Commission has not adduced evidence of the accuracy of its allegation or submitted details as to the practical difficulties
         liable to result therefrom.
      
      100   In view of the foregoing the damages payable to the applicants in respect of the loss of pension rights or, where appropriate,
         a severance grant in accordance with the grounds stated above, are to be determined as indicated in column 5 of Annex 3 to
         the present judgment. It is appropriate, as a matter of convenience, to mention under that heading the unemployment benefit
         to which two of the applicants were entitled, as indicated at paragraph 28 above.
      
       On the total amount of the damages due to each of the applicants
      101   The Court of First Instance held in the interlocutory judgment (paragraph 167) that, during the time spent working for the
         JET Joint Undertaking, the applicants’ loss lies in the difference between the salaries, related benefits and pension rights
         which the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary
         staff and the salaries, related benefits and pension rights which they actually received or acquired as members of the contract
         staff.
      
      102   It follows from all the foregoing that the definitive amount of damages due to each of the applicants in compensation for
         the loss in question, as at 31 December 1999, the date which, in any event, concludes the liability period, is the total sum
         indicated in column 6 of Annex 3 to the present judgment. From that date, interest is to accrue on that sum at the rate of
         5.25%, as indicated at paragraph 28 above, until the actual payment of the damages.
      
       Tax treatment of the applicants’ compensation
      103   The parties have set out the problems liable to arise nationally in the context of the implementation of the present judgment,
         as a result of the intention of the United Kingdom tax authorities to tax, if not the principal, at least the interest accruing
         on the damages at issue in the present case, contrary to the terms of the interlocutory judgment.
      
      104   It must be pointed out that the Court of First Instance has held that, since the damages due to each applicant were intended
         to compensate for loss of salary and related benefits assessed net of tax and calculated, according to the same rules, taking
         Community tax into account, they must benefit from the tax regime applicable to the sums paid by the Communities to their
         staff, pursuant to Article 16 of the Protocol on the Privileges and Immunities of Officials and Other Servants of the European
         Communities. The damages in question, thus interpreted as net of any taxation, cannot therefore be subject to deductions of
         national tax. No additional damages are therefore due by way of compensation for such deductions (paragraph 176 of the interlocutory
         judgment).
      
      105   It follows from the interlocutory judgment that both the principal of the damages due to each applicant and the interest accruing
         thereon, which reflects the cost of the time taken to make good the damage to the parties concerned and is therefore inextricably
         linked to the principal, cannot in any case be subject to any deduction of national tax which would have the direct effect
         of reducing the compensation for that damage. Moreover, as is clear from the interlocutory judgment, the Community cannot
         be ordered to pay additional damages to the applicant, which would be unconnected with the unlawful conduct declared by the
         Court of First Instance, in order to compensate for the reduction of the damages finally retained by the parties concerned,
         owing to national tax decisions, such a payment being tantamount to an increase without due cause in the budget of a Member
         State.
      
      106   Without there being any need to prejudge any of the procedural consequences, the expediency of which it is for the Commission
         to consider, to which the Member State concerned would be liable in such a case, the Court of First Instance can only confirm
         that the damages due to the applicants are entirely exempt from tax under national provisions, as regards both the principal
         and interest, an exemption which arises from the grounds of the interlocutory judgment, which has acquired the definitive
         status of res judicata, as indicated at paragraphs 26 and 28 above.
      
       Costs
       Arguments of the parties
      107   The applicants, who claim that the Court of First Instance should order the Commission to pay their costs pursuant to Article
         87 of the Rules of Procedure, state that, although the Court of First Instance has restricted the liability period, they have
         not failed on a distinct head of claim and their costs are not proportionate to the length of the liability period.
      
      108   The Commission maintains that the applicants cannot claim to have won since they have been defeated on one of the essential
         issues, namely limitation, which has the effect of making a five or six-fold reduction in their original claims. It notes
         that the Court of First Instance devoted nearly one half of the interlocutory judgment to that question and it considers that
         one conceivable approach would be to order it only to pay one half of the applicants’ costs.
      
       Findings of the Court
      109   It must be recalled that the costs of the proceedings were reserved by paragraph 4 of the operative part of the interlocutory
         judgment.
      
      110   It follows from Article 88 of the Rules of Procedure, which applies to the present case, that, since the dispute was dealt
         with under the heading of litigation in disputes between the Community and its staff (paragraph 54 of the interlocutory judgment),
         in that context, without prejudice to the second subparagraph of Article 87(3), the institutions are to bear their own costs.
      
      111   Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances
         are exceptional, the Court of First Instance may order that costs be shared or that each party bear its own costs.
      
      112   Moreover, Article 87(4) of the Rules of Procedure provides that the Member States and institutions which intervened in the
         proceedings are to bear their own costs.
      
      113   It must be observed that, as is apparent both from the operative part of the interlocutory judgment and from the grounds set
         out in support thereof, the applicants have essentially been successful. The Court of First Instance has recognised their
         right to compensation for the damage suffered by each of them on account of the fact that they were not recruited as a members
         of the temporary staff of the Communities for the time they worked at the JET Joint Undertaking. Hence, the point made by
         the defendant – that the Court of First Instance limited the liability period – in no way mitigates the finding of full responsibility
         on the part of the Community for the unlawful conduct, which was found for the entire period during which the applicants worked
         at JET.
      
      114   Furthermore, even though the applicants’ claims for compensation have been partly unsuccessful, inasmuch as the Court of First
         Instance has not upheld all the claims in respect of the damage at issue, the fact remains that all the applicants have obtained
         compensation greater than that which the Commission was willing to grant them (see Mulder and Others v Council and Commission, paragraphs 363 to 365).
      
      115   It is necessary, in those circumstances, to order that, in respect of the entire proceedings before the Court of First Instance,
         the Commission is to bear its own costs and pay those of the applicants and that the Council, as intervener, is to bear its
         own costs.
      
      On those grounds,
      THE COURT OF FIRST INSTANCE (First Chamber)
      hereby:
      1.      Orders the Commission to pay to each of the applicants damages corresponding to the sum indicated for each of them in column
            6 of Annex 3 to the present judgment;
      2.      Orders that that sum shall bear interest at the rate of 5.25% from 31 December 1999 until actual payment;
      3.      Orders the Commission to bear its own costs and to pay the costs of the applicants incurred in respect of the entire proceedings
            before the Court of First Instance;
      4.      Orders the Council to bear its own costs.
      
               Vesterdorf 
            
            
                Jaeger 
            
            
                Legal
            
         Delivered in open court in Luxembourg on 12 July 2007.
      
               E. Coulon 
            
             
            
                      B. Vesterdorf
            
         
               Registrar 
            
             
            
                      President
            
         Annex 1
      
      List of Applicants (95)
      Ashby
      Ashman
      Atkins
      Austin
      Bainbridge
      Baker
      Barlow
      Boyce
      Bracey
      Brown B
      Browne M
      Bruce
      Butler
      Carman
      Clapinson
      Clay
      Downes
      Evans G
      Evans J
      Gallagher
      Gear
      Gedney
      Grey
      Grieveson
      Haist
      Hamilton
      Handley
      Harrison
      Hart
      Haydon
      Hayward
      Hopkins
      Howard
      Howarth
      Hume
      Jones E
      Jones G
      Lawler
      MacMillan
      Martin
      May C
      May D
      Merrigan
      Middleton
      Mills
      Musselwhite
      Napper
      Nicholls
      Organ
      Page
      Parry
      Parsons
      Pledge
      Potter
      Preece
      Price
      Richardson
      Rivers‑Playle
      Rolfe
      Russell
      Sanders S
      Sanders SG
      Scott
      Shaw
      Sibbald
      Skinner
      Smith PG
      Smith T
      Spelzini
      Stafford‑Allen
      Stagg
      Stanley
      Starkey
      Sutton
      Tait
      Taylor
      Tigwell
      Toft
      Tulloch
      Twynam
      Walden
      Walker
      Wallace
      Walsh
      Watkins
      Way
      West
      Whitby
      Wijetunge
      Willis
      Wilson DJ
      Wilson DW
      Wright
      Yorkshades
      Young
      
      Annex 2
      
      Name of applicant 
      Start of the liability period
      Grade and step at the start of the liability period
      Ashby
      1 January 1995
      B 1/4
      Ashman
      1 March 1995
      B 2/2
      Atkins
      1 January 1995
      A 6/1
      Austin
      1 January 1995
      C 2/3
      Bainbridge
      1 June 1995
      A 6/2
      Baker
      1 January 1995
      B 1/8
      Barlow
      1 January 1995
      B 1/2
      Boyce
      1 January 1995
      B 2/1
      Bracey
      12 January 1995
      B 1/6
      Brown B
      1 January 1995
      B 1/8
      Browne M
      1 February 1995
      A 5/8
      Bruce
      1 February 1995
      B 2/4
      Butler
      1 January 1995
      B 3/4
      Carman
      1 January 1995
      B 1/4
      Clapinson
      1 January 1995
      B 1/8
      Clay
      1 January 1995
      B 1/7
      Downes
      1 January 1995
      B 2/3
      Evans G
      1 January 1995
      B 1/5
      Evans J
      1 January 1995
      B 1/5
      Gallagher
      1 May 1995
      B 1/8
      Gear
      2 July 1995
      B 4/4
      Gedney
      1 January 1995
      B 1/4
      Grey
      1 January 1995
      B 1/8
      Grieveson
      1 November 1995
      B 2/1
      Haist
      1 January 1995
      A 6/3
      Hamilton
      1 January 1995
      A 6/2
      Handley
      1 January 1995
      B 2/1
      Harrison
      1 March 1995
      B 2/1
      Hart
      31 March 1995
      B 2/4
      Haydon
      1 August 1995
      B 1/2
      Hayward
      1 January 1995
      B 1/8
      Hopkins
      1 January 1995
      B 1/4
      Howard
      1 January 1995
      B 1/8
      Howarth
      1 January 1995
      B 2/4
      Hume
      1 April 1997
      B 2/2
      Jones E
      1 April 1995
      B 1/2
      Jones G
      1 May 1995
      B 1/4
      Lawler
      3 May 1995
      A 5/3
      MacMillan
      1 January 1995
      B 1/4
      Martin
      1 January 1995
      B 1/2
      May C
      1 August 1995
      B 3/4
      May D
      18 April 1995
      B 2/3
      Merrigan
      1 May 1995
      B 3/4
      Middleton
      6 March 1995
      A 5/1
      Mills
      1 May 1995
      A 5/8
      Musselwhite
      1 January 1995
      B 2/1
      Napper
      1 January 1995
      B 2/1
      Nicholls
      1 January 1995
      B 1/3
      Page
      1 January 1995
      B 1/4
      Parry
      1 January 1995
      B 1/3
      Parsons
      1 May 1995
      A 5/4
      Pledge
      1 January 1995
      B 1/4
      Potter
      1 January 1995
      B 1/3
      Preece
      19 June 1995
      B 4/2
      Price
      1 January 1995
      B 1/4
      Richardson
      1 March 1995
      B 2/3
      Rivers‑Playle
      1 April 1996
      D 3/2
      Rolfe
      1 February 1995
      A 4/8
      Russell
      1 March 1995
      B 1/3
      Sanders S
      1 April 1995
      B 3/2
      Sanders SG
      1 January 1995
      A 5/4
      Scott
      6 January 1995
      B 3/4
      Shaw
      1 February 1995
      B 1/4
      Skinner
      1 May 1995
      B 2/2
      Smith PG
      1 May 1995
      B 1/2
      Smith T
      1 January 1995
      B 3/3
      Spelzini
      1 January 1995
      B 2/4
      Stafford‑Allen
      1 April 1995
      A 5/3
      Stagg
      1 June 1995
      A 5/6
      Stanley
      1 April 1995
      B 4/3
      Starkey
      1 January 1995
      A 6/2
      Sutton
      1 January 1995
      B 3/4
      Tait
      1 November 1995
      B 1/4
      Taylor
      1 April 1995
      B 2/2
      Tigwell
      1 January 1995
      B 1/5
      Toft
      1 January 1995
      B 2/4
      Tulloch
      1 June 1995
      B 2/1
      Twynam
      1 January 1995
      A 5/8
      Walden
      1 January 1995
      A 5/7
      Walker
      1 January 1995
      B 2/2
      Wallace
      1 January 1995
      B 3/4
      Walsh
      1 January 1995
      B 1/8
      Watkins
      1 January 1995
      B 1/8
      Way
      1 January 1995
      B 1/5
      West
      1 October 1995
      B 3/4
      Whitby
      1 January 1995
      B 2/4
      Wijetunge
      1 January 1995
      B 1/3
      Willis
      1 January 1995
      B 2/2
      Wilson DJ
      1 May 1995
      A 5/4
      Wilson DW
      1 April 1995
      B 3/3
      Wright
      1 January 1995
      C 1/6
      Yorkshades
      31 July 1995
      B 2/1
      Young
      16 January 1995
      B 1/4
      
      
      
      Annex 3
      
      Name of applicant
      Total income received as a member of the contract staff (1)
      National income
      (GBP)
      Total net income of an equivalent member of the temporary staff (2)
      Community income
      (GBP) 
      Difference: simple net loss
      (3 = 2 - 1) 
      (GBP) 
      Difference: accrued net loss
      (4 = 3 updated to 31 December 1999)
      (GBP)
      Loss of service pension (or severance grant) +, where appropriate, unemployment benefit (5)
      (GBP)
      Total loss as at 31 December 1999 
      (6 = 4 + 5)
      (GBP) 
      Ashby
      130 241
      221 535
      91 294
      100 375
      192 027
      292 401
      Ashman
      74 905
      166 244
      91 339
      99 773
      43 647
      143 420
      Atkins
      139 741
      238 403
      98 662
      107 830
      48 050
      155 880
      Austin
      56 991
      126 224
      69 233
      76 018
      31 194
      107 211
      Bainbridge
      86 407
      161 292
      74 885
      83 289
      15 557
      98 846
      Baker
      141 265
      240 123
      98 858
      109 525
      177 809
      287 334
      Barlow
      124 685
      230 699
      106 014
      116 339
      52 718
      169 057
      Boyce
      85 014
      176 158
      91 145
      99 873
      124 135
      224 007
      Bracey
      82 044
      206 021
      123 976
      135 884
      163 221
      299 105
      Brown B
      132 086
      299 845
      167 759
      185 165
      184 781
      369 946
      Browne M
      197 775
      290 026
      92 250
      103 268
      136 666
      239 935
      Bruce
      96 829
      273 189
      176 360
      192 718
      60 556
      253 274
      Butler
      79 686
      173 660
      93 974
      103 308
      79 778
      183 085
      Carman
      145 150
      233 290
      88 140
      97 480
      152 453
      249 933
      Clapinson
      121 921
      218 248
      96 327
      106 541
      203 431
      309 973
      Clay
      129 801
      265 631
      135 830
      150 347
      158 431
      308 779
      Downes
      117 129
      210 762
      93 632
      102 374
      121 201
      223 575
      Evans G
      73 566
      248 627
      175 061
      192 018
      141 165
      333 184
      Evans J
      125 013
      286 433
      161 419
      177 490
      158 431
      335 921
      Gallagher
      108 878
      238 044
      129 166
      141 649
      179 225
      320 874
      Gear
      62 054
      165 185
      103 131
      111 768
      34 077
      145 845
      Gedney
      111 391
      201 693
      90 302
      99 087
      164 593
      263 680
      Grey
      131 095
      261 486
      130 391
      144 034
      184 781
      328 815
      Grieveson
      89 710
      165 150
      75 440
      81 096
      36 386
      117 483
      Haist
      137 162
      270 098
      132 936
      145 846
      54 146
      199 992
      Hamilton
      68 752
      137 679
      68 928
      76 973
      20 429
      +  9 254
      106 657
      Handley
      99 803
      210 536
      110 733
      120 698
      45 181
      165 879
      Harrison
      69 257
      174 519
      105 262
      114 884
      147 207
      262 091
      Hart
      78 363
      224 136
      145 772
      158 112
      153 615
      311 727
      Haydon
      80 000
      207 028
      127 027
      138 023
      48 130
      186 153
      Hayward
      131 015
      258 144
      127 129
      140 446
      184 781
      325 227
      Hopkins
      65 486
      125 416
      59 929
      69 620
      32 412
      102 031
      Howard
      99 629
      237 913
      138 283
      152 547
      211 408
      363 955
      Howarth
      79 800
      220 085
      140 285
      154 223
      109 733
      263 956
      Hume
      52 126
      121 377
      69 251
      72 243
      24 015
      96 258
      Jones E
      59 227
      192 238
      133 011
      145 101
      129 770
      274 871
      Jones G
      71 500
      249 345
      177 845
      193 568
      165 605
      359 173
      Lawler
      68 730
      128 743
      60 012
      69 116
      65 862
      134 978
      MacMillan
      121 329
      212 844
      91 515
      100 689
      92 142
      192 831
      Martin
      130 727
      216 603
      85 876
      94 741
      162 412
      257 153
      May C
      104 466
      138 630
      34 163
      36 835
      77 944
      114 779
      May D
      74 803
      178 980
      104 178
      113 695
      57 332
      171 027
      Merrigan
      108 107
      182 196
      74 089
      80 117
      97 918
      178 035
      Middleton
      172 567
      232 437
      59 869
      64 880
      57 815
      122 695
      Mills
      177 809
      242 033
      64 224
      71 667
      178 566
      250 233
      Musselwhite
      111 539
      227 126
      115 587
      127 577
      158 254
      285 831
      Napper
      67 017
      201 685
      134 667
      147 989
      36 436
      184 425
      Nicholls
      79 159
      207 443
      128 284
      141 468
      61 434
      202 902
      Page
      91 825
      241 553
      149 728
      163 731
      149 503
      313 234
      Parry
      99 210
      223 866
      124 655
      136 539
      149 110
      285 649
      Parsons
      155 422
      271 874
      116 452
      127 752
      177 524
      305 276
      Pledge
      111 220
      212 844
      101 624
      111 105
      206 944
      318 049
      Potter
      29 665
      48 297
      18 632
      22 329
      6 699
      29 027
      Preece
      72 369
      88 576
      16 208
      18 058
      17 997
      36 055
      Price
      119 511
      195 068
      75 556
      83 455
      88 421
      + 20 404
      192 280
      Richardson
      124 313
      188 507
      64 194
      69 610
      53 133
      122 743
      Rivers‑Playle
      29 747
      69 948
      40 202
      42 969
      14 812
      57 782
      Rolfe
      247 601
      390 887
      143 286
      158 212
      228 949
      387 161
      Russell
      68 108
      208 170
      140 062
      153 428
      144 140
      297 568
      Sanders S
      115 996
      157 096
      41 101
      44 627
      37 137
      81 764
      Sanders SG
      146 352
      315 672
      169 320
      185 733
      67 780
      253 513
      Scott
      66 865
      169 720
      102 854
      113 622
      120 030
      233 653
      Shaw
      79 404
      217 076
      137 672
      150 933
      220 231
      371 165
      Skinner
      124 852
      213 489
      88 637
      96 115
      98 200
      194 315
      Smith PG
      125 770
      177 863
      52 094
      56 457
      123 707
      180 164
      Smith T
      79 341
      169 426
      90 086
      99 297
      87 930
      187 227
      Spelzini
      86 280
      201 903
      115 624
      126 833
      107 642
      234 476
      Stafford-Allen
      50 407
      140 309
      89 902
      97 751
      21 152
      118 903
      Stagg
      117 358
      258 629
      141 270
      153 397
      150 142
      303 540
      Stanley 
      90 323
      134 101
      43 778
      47 436
      33 512
      80 948
      Starkey
      166 303
      212 171
      45 868
      50 027
      151 261
      201 289
      Sutton
      36 813
      108 580
      71 767
      81 219
      15 734
      96 953
      Tait
      121 790
      173 160
      51 370
      55 094
      168 898
      223 992
      Taylor
      68 819
      180 446
      111 627
      121 505
      101 894
      223 399
      Tigwell
      133 215
      266 550
      133 335
      146 385
      155 414
      301 799
      Toft
      62 458
      210 341
      147 883
      162 114
      144 078
      306 192
      Tulloch
      61 440
      112 213
      50 773
      56 835
      115 114
      171 948
      Twynam
      115 388
      272 347
      156 960
      173 380
      236 393
      409 774
      Walden
      135 796
      282 686
      146 890
      161 689
      202 683
      364 372
      Walker
      84 893
      231 965
      147 072
      161 465
      48 402
      209 867
      Wallace
      64 766
      147 993
      83 227
      91 230
      38 838
      130 068
      Walsh
      131 125
      240 123
      108 998
      120 805
      184 781
      305 586
      Watkins
      132 413
      240 123
      107 710
      119 396
      215 513
      334 910
      Way
      142 667
      278 237
      135 569
      149 648
      164 644
      314 291
      West
      59 445
      151 241
      91 796
      99 443
      71 839
      171 281
      Whitby
      107 244
      243 356
      136 113
      148 728
      134 396
      283 123
      Wijetunge
      111 181
      239 653
      128 472
      140 345
      198 970
      339 315
      Willis
      124 289
      184 913
      60 624
      66 216
      120 376
      186 592
      Wilson DJ
      130 907
      250 709
      119 802
      130 596
      143 676
      274 272
      Wilson DW
      112 222
      181 198
      68 976
      75 234
      37 918
      113 152
      Wright
      72 261
      164 076
      91 815
      100 891
      85 607
      186 498
      Yorkshades
      126 132
      196 207
      70 075
      75 609
      113 137
      188 746
      Young
      140 516
      247 755
      107 240
      117 362
      65 253
      182 615
      
      * Language of the case: English.