CELEX: 62002TJ0144(01)
Language: en
Date: 2007-07-12
Title: Judgment of the Court of First Instance (First Chamber) of 12 July 2007. # Richard J. Eagle 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. # Case T-144/02.

Case T-144/02
      Richard J. Eagle 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, 64, 67)
      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 76-78)
      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 89-92)
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‑144/02,
      Richard J. Eagle, residing in Oxfordshire (United Kingdom) and the 12 applicants whose names appear in the annex, represented by D. Beard,
         Barrister,
      
      applicants,
      v
      Commission of the European Communities, represented by J. Currall, acting as Agent, 
      
      defendant,
      supported by
      Council of the European Union, represented 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‑144/02 Eagle and Others v Commission [2004] ECR II‑3381 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‑144/02 Eagle and Others v Commission [2004] ECR II‑3381 (‘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 141, 157 and 164 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 71 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 167) 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 166 and 168
         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 169
         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 170 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 171 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 173 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 19 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 2 629 269, 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 574 424;
      
      –       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 three of them –
         T. F. Atkins, E. Junger and J. Fanthome – 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 10 of the 13 applicants
         are submitting claims for damages.
      
      19     It is also necessary to take formal note of the withdrawal of the Commission’s contention made in its observations of 1 March 2007
         that the Court of First Instance should rule on the question of a potential offset between any damages owed by the Commission
         to Mr Walton in execution of the present judgment and the amounts which the Commission states are owed to it by him pursuant
         to its decision of 27 May 2005 (see, on offset of amounts receivable, Case T‑231/04 Greece v Commission [2007] ECR I‑0000, paragraph 11 et seq.).
      
       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 28 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).
      
      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 referred to in paragraph 8 above, the parties reached further agreement
         on certain aspects of the points of disagreement set out above. Total agreement was, however, only achieved on 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 83 and 166 of the interlocutory judgment). Moreover, it is clear from the judgment (paragraph
         171) 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,
         it being specified that in the particular case of Mr Walton who was recruited as a member of the temporary staff in 1999,
         the period for which he is entitled to compensation ends on the date of his recruitment under the Conditions of Employment
         of other servants of the European Communities.
      
      34     It follows from the inquiries and in particular from the replies to the measure of organisation of procedure referred to at
         paragraph 8 above, that the applicants were unable to overcome the difficulties they encountered in determining the exact
         date of the start of the liability period for each of them, owing to the existence of weekly and monthly methods of payment,
         the late renewal of their contracts and, in the case of two of them, of non‑annual contracts. In the light of these facts,
         established by consulting the JET archives, which made determining the start date of the liability period particularly sensitive,
         the applicants came to an agreement with the Commission to adopt 1 March 1996 (five years before their request for compensation)
         as the start date for the period. 
      
      35     In view of the specific difficulties alleged by the applicants in using the contractual documents referred to and of the agreement
         of the Commission, it is for the Court of First Instance, which in the interlocutory judgment called on the parties to reach
         agreement, 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 to be 1 March 1996, as indicated in the second column of Annex 2 to the present judgment.
      
      36     Consequently, the applicants’ alternative proposition set out in their reply to the measure of organisation of procedure to
         the effect that account should be taken not of the effective date of the earliest contract concluded or renewed but of the
         first date at which a payment was due must be dismissed, a suggestion which was moreover contested by the defendant as being
         inconsistent with the grounds of the interlocutory judgment (paragraph 166).
      
       Contributions, deductions and other charges
      37     The Court of First Instance held in the interlocutory judgment (paragraph 170) 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.
      
      38     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. The Commission accepted that methodology.
      
      39     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
      40     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. 
      
      41     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.
      
      42     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.
      
      43     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.
      
      44     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.
      
      –       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 155 and 157 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 166 and 168) 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 127 and
         139 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
         57 to 84), 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 166 and 168), 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     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
      58     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.
      
      59     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.
      
      60     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.
      
      61     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.
      
      62     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
      63     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.
      
      64     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.
      
      65     As regards promotions during the liability period, the Court of First Instance held in the interlocutory judgment (paragraph
         169) 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.
      
      66     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.
      
      67     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 140 and 141 of the interlocutory judgment) and that they had, consequently, suffered loss (paragraphs 164 and
         169 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.
      
      68     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.
      
      69     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
      70     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.
      
      71     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.
      
      72     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.
      
      73     Further to the measure of organisation of procedure, it is apparent that the parties came to an agreement on the following
         points.
      
      74     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.
      
      75     Concerning overtime, the parties have agreed to distinguish the situations of the applicants according to whether they fall
         within category A or category B. 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 those in category
         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
      76     The Court of First Instance held in the interlocutory judgment (paragraph 164) 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.
      
      77     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.
      
      78     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.
      
      79     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. 
      
      80     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.
      
      81     Concerning the applicants who are classified in category B, 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.
      
      82     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.
      
      83     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
      84     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.
      
      85     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
      86     The Court of First Instance held in the interlocutory judgment (paragraph 164) 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.
      
      87     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 171 of the interlocutory judgment).
      
      88     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.
      
      89     As pointed out at paragraph 51 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.
      
      90     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.
      
      91     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.
      
      92     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.
      
      93     The foregoing assessment is not called into question by the factors which the Commission has relied on.
      94     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.
      
      95     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.
      
      96     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.
      
      97     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.
      
      98     Furthermore, although the applicants have been claiming damages in respect of loss of pension rights from the lodging of their
         action in 2002 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.
      
      99     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.
      
       On the total amount of the damages due to each of the applicants
      100   The Court of First Instance held in the interlocutory judgment (paragraph 164) 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.
      
      101   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
      102   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.
      
      103   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 173 of the interlocutory
         judgment).
      
      104   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.
      
      105   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
      106   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.
      
      107   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 in Case T‑144/02 of 5 October 2004
         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
      108   It must be recalled that the costs of the proceedings were reserved by paragraph 4 of the operative part of the interlocutory
         judgment.
      
      109   It follows from Article 88 of the Rules of Procedure of the Court of First Instance, 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
         52 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.
      
      110   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.
      
      111   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.
      
      112   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.
      
      113   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).
      
      114   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 (13)
      
      Atkins T.F.
      Brickley Carol
      Eagle Richard J.
      Fanthome John G.
      Felton Robert
      Gaberscik Alexander
      Gardener Martin
      Grant Michael George
      Junger Edward
      Marren Clifford
      Marrs Beryl
      Sands David
      Walton Robert C.
      
      
      Annex 2
      
      Name of applicant
      Start of the liability period
      Grade and step at the start of the liability period
      Brickley
      1 March 1996
      A 5/2
      Eagle
      1 March 1996
      B 1/8
      Felton
      1 March 1996
      A 5/3
      Gaberscik
      1 March 1996
      A 7/1
      Gardener
      1 March 1996
      B 1/7
      Grant
      1 March 1996
      B 2/4
      Marren
      1 March 1996
      B 1/5
      Marrs
      1 March 1996
      B 1/8
      Sands
      1 March 1996
      B 2/1
      Walton
      1 March 1996
      A 5/5
      
      
      
      Annex 3
      
      
      Name of applicant
      Total net income received as 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)
      (5)
      (GBP) 
      Total loss as at 31 December 1999
      (6 = 4 + 5)
      (GBP) 
      Brickley
      55 885
      127 702
      71 817
      78 799
      12 233
      91 033
      Eagle
      102 784
      186 517
      83 734
      90 189
      147 220
      237 410
      Felton
      127 231
      198 678
      71 447
      76 915
      48 132
      125 047
      Gaberscik
      61 513
      87 728
      26 215
      28 210
      12 346
      40 555
      Gardener
      104 242
      262 987
      158 745
      170 348
      121 464
      291 812
      Grant
      62 745
      167 619
      104 875
      111 738
      127 730
      239 467
      Marren
      111 040
      207 958
      96 918
      104 288
      123 823
      228 111
      Marrs
      102 977
      186 517
      83 540
      89 981
      162 080
      252 061
      Sands
      72 970
      157 228
      84 259
      90 038
      88 551
      178 589
      Walton
      113 978
      210 673
      96 695
      103 612
      104 409
      208 021
      
      * Language of the case: English.