CELEX: 61974CC0065
Language: en
Date: 1975-02-25
Title: Opinion of Mr Advocate General Reischl delivered on 25 February 1975. # Porrini and others v European Atomic Energy Community and Comont SpA and Bellintani and others v European Atomic Energy Community and Cemi SpA. # Reference for a preliminary ruling: Tribunale di Varese - Italy. # Case 65-74.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 25 FEBRUARY 1975 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      There are two cases pending before the Labour Commissioner at the Tribunale di Varese in which the main relief sought is a declaration that a number of persons ought to be regarded as Euratom officials or as establishment staff and should receive the appropriate remuneration.
      These persons — meanwhile they have all become local staff within the meaning of Article 79 to 81 of the Conditions of Employment of Other Servants of the Communities — were employed by two Italian Companies, which together with Euratom, are defendants in the main action. The Commission of the European Communities had concluded contracts for services with these companies under which the companies were responsible for part of certain subordinate activities on the premises of the Ispra Research Centre of the Joint Nuclear Research Centre, for example, the cleaning, maintenance and repair of the plant and buildings. In this connexion the plaintiffs allege, and they tender evidence in this respect, that they had to work on the premises of the Research Centre, to use in their work materials supplied by the Centre and to comply with directions which officials of the Community gave them. The salaries paid to them by the defendant companies were, however, lower than those of officials and establishment staff with whom they had worked side by side in the performance of the same or similar tasks.
      According to the plaintiffs' view this is not in accordance with the Italian Law No 1369 of 23 October 1960 prohibiting the intervention and interposition of third parties in service relationships and laying down new requirements governing the hiring of labour in connexion with contracts for services. Article 1 of the Law provides:
      ‘Undertakings shall not enter into any contract for services or any subcontract or other form of agreement, even with a cooperative society, for the provision of labour only, to be engaged and paid by the contractor or the intermediary, whatever the nature of the work or services which are the subject of such contract.’
      Paragraph 4 of the said article applies this to state concerns and public bodies. It follows from paragraph 5 that workers employed in contravention of the restrictive provisions of this article shall for all purposes be deemed to be employed by the undertaking which has actually made use of their services.
      From this the plaintiffs infer that from the time when they began work they are to be treated in every respect as officials of Euratom in certain grades, alternatively as establishment staff in certain grades and that accordingly they had money claims against the European Atomic Community.
      Alternatively they rely on Article 3 of the said Italian law which provides:
      ‘Undertakings which place contracts for work or services, including porterage, cleaning and routine maintenance of plant or buildings, to be carried out on their business premises under the direction and control of the contractor shall be under an obligation jointly and severally with the contractor to pay workers employed by the latter a minimum level of remuneration which may not be withheld and accord them conditions of employment not inferior to those enjoyed by workers in their own employment.’
      Based on this the plaintiffs seek a declaration that Euratom is at least jointly and severally liable with the said two Italian companies to pay the plaintiffs a salary and emoluments equal to those received by officials or establishment staff in the categories mentioned.
      Lastly, in the further alternative they claim treatment as local staff of the Research Centre.
      On these claims, which the Commission of the European Communities opposes, the Commissioner, before whom the matter has come, has given a preliminary ruling that the Italian Law No 1369 does not apply to Euratom. For the prohibitions in the law are directed only against undertakings and Euratom is not an undertaking within the meaning of the law and the Research Centre at Ispra does not carry on a ‘business’ in the economic sense. It is also significant that the contracts for services concluded by Euratom are governed by Article 33 (1) of Annex F to the Italian Law No 906 of 1 August 1960 on the ratification of the Agreement concluded in Rome on 22 July 1959 between the Italian Government and the European Atomic Energy Community for the establishment of a Joint Nuclear Research Centre at Ispra. Under this the Commission has the obligation to provide conditions of work as favourable as those for work of the same nature in industries in the region concerned. This obligation is more limited than that in Article 3 of the Italian Law No 1369.
      In the Italian Commissioner's view the application for a declaration that Euratom is under a joint and several obligation by virtue of Article 3 of Law No 1369 must therefore be rejected. In the same way, having regard to the Agreement already mentioned concluded between the Italian Government and Euratom and the fact that the plaintiffs already receive the treatment which is provided for in this Agreement, the claim that the plaintiffs should be accorded the status of local staff should be rejected.
      The Commissioner considers it arguable however that the legal principles, common to all legal orders, relating to fictitious transactions according to which the real substance of those transactions must be given effect, come into operation. This — in relation to the present matter — would mean that the existence of a direct master and servant relationship between Euratom and the plaintiffs would have to be recognized. Looked at in this way, then, in the view of the Commissioner before whom the matter was brought, the main applications of the plaintiffs could be regarded as admissible even if the Italian Law No 1369 did not apply.
      Since, however, the Commission objected that the Italian Commissioner did not have jurisdiction under the provisions of the Euratom Treaty to decide the two main applications and that in any case an instrument of appointment was necessary which a judge could not replace, the Commissioner stayed the proceedings by judgment dated 18 March 1974 and referred the following three questions for a preliminary ruling under Article 150 of the Euratom Treaty:
      
               1.
            
            
               Is Article 152 of the Treaty to be interpreted as meaning that disputes between the Community and persons who, not being its servants, nevertheless claim to be such, fall within the jurisdiction of the Court of Justice?
            
         
               2.
            
            
               Must the service relationship between the Community and officials and servants be invariably based on an instrument of appointment, or may that instrument be replaced by a decision of a judicial authority that a specific service relationship exists de facto?
            
         
               3.
            
            
               Finally, if the answer to the previous question is in the affirmative, is the Court, under the rules and general principles of the Treaty establishing the European Atomic Energy Community and of the Staff Regulations of Officials and Servants of the Community, entitled, on the basis of recognition that a service relationship in fact exists, to establish a direct service relationship between the Community and persons who, though apparently employed by firms of contractors to the Community, work on the latter's premises and, according to what the plaintiffs in these proceedings have asserted and propose to prove, use materials supplied by the Community for their work and act under the direction of its officials? (In this connexion reference is made to a number of circumstances which might be taken into account in answering the third question. They are set out on pages 27 and 28 of the German version of the judgment making the reference.)
            
         My views on these problems are as follows.
      
               1.
            
            
               
                  On the first question:
               
               According to what is to be read from the judgment making the reference, the first question is probably to be understood as meaning that an investigation should be made whether in disputes of this nature this Court has exclusive jurisdiction, which would mean that the national court has no jurisdiction. This relates only to the problem that certain persons employed at Ispra claim the status of officials or establishment staff. The legal position of local staff can therefore be disregarded; there is no doubt that national courts have jurisdiction to judge such cases under Article 81 of the Conditions of Employment of Other Servants and Articles 28 and 32 of Annex F of the said Agreement between the Italian Government and Euratom.
               First it should be mentioned that, with regard to the delimitation of jurisdictions, Article 155 of the Euratom Treaty provides: ‘Save where jurisdiction is conferred on the Court of Justice by this Treaty, disputes to which the Community is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’. From this it follows that every time that jurisdiction is conferred on the European Court of Justice under provisions of Community law, the European Court has exclusive jurisdiction.
               If the provisions of the Treaty are looked at in this light, then in the present case — the Commissioner making the reference has rightly recognized this — Article 152 of the Treaty must be considered first of all. Under Article 152 ‘the Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’. As regards disputes of the kind that are in question here reference should be made to the Staff Regulations in so far as the status of officials is in question and to the Conditions of
               Employment in relation to the status of establishment staff. The relevant provision is Article 91 of the Staff Regulations, which, by reason of the reference in Article 97 of the Conditions of Employment, applies equally to officials and to establishment staff. It prescribes that the Court of Justice shall have jurisdiction ‘in any dispute between the Communities and any person to whom these Staff Regulations apply …’. If the wording of this provision is taken strictly, then it is possible to infer that the European Court of Justice has no jurisdiction in disputes of the present kind because they concern persons to whom the Staff Regulations and the Conditions of Employment do not yet apply, but who are only seeking to bring about that situation. In my view various considerations make it plain that such a conclusion would be quite untenable.
               The Commission has rightly referred to the fact that it is a customary practice for international organizations to remove questions of employment of their staff from national courts. The underlying reason for this is the principle of immunity of such bodies with regard to their organic structure; it rules out the exercise by states which are members of such bodies of influence upon the internal structure of such organizations through their national judicial authorities. With regard to the examples cited by the Commission may I, for the sake of simplicity, refer to the statements in the document dated 6 November 1974 (pages 15 and 16 in the French version). Following on from this basic concept and the other equally important one, namely that such relationships under the law governing the public service require uniform judging by a central court, a wide interpretation of Article 91 of the Staff Regulations is certainly called for, so that all disputes relating to the public service of the Communities are covered by it including those which are concerned with the recognition of the status of official or that of establishment staff.
               A further objection is that it would appear absurd to reserve to the Court of Justice all kinds of disputes over what are to some extent subordinate questions of the legal relationships between the Community as an employer and its officials or the staff of its nuclear establishments whilst at the same time denying it jurisdiction in disputes which go to the very existence of such legal relationships.
               Finally the case-law has already shown that the Court of Justice has jurisdiction not only in disputes in which officials or former officials are parties, but also where the parties have not yet become officials and are taking part in competitions to become so. I refer for example to Case 23/64 (Judgment of 31 March 1965, Thérèse Vandevyvere v European Parliament, [1965] ECR 157).
               Simply on the basis of Article 152 of the Euratom Treaty in conjunction with Article 91 of the Staff Regulations, I have accordingly no hesitation in acknowledging that the European Court of Justice has exclusive jurisdiction also in cases in which litigants are claiming the status of officials or established staff.
               Further, however, relying on the case-law of the ‘pre-Staff Regulations’ time (for example in Joined Cases 43, 45 and 48/59, Judgment of 15 July 1960, Eva von Lachmüller and two others v Commission of the EEC, Rec. 1960, p. 933) recourse may be had to the general rules of jurisdiction in the Treaty and in particular to the third paragraph of Article 148. This provision prescribes the jurisdiction of the Court of Justice in so-called breach of duty actions against institutions of the Community, that is, in cases in which natural or legal persons complain that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion. On this point it is significant that the basis of the service relationship under Community law requires an act of appointment issued by the competent authority (cf. Article 1 of the Staff Regulations). It could be said that whoever wishes to become an official must bring an action for the issue of such an act as is referred to, inter alia in the third paragraph of Article 148.
               Not quite the same applies to establishment staff whose legal relationship with the Community rests on a contract as appears from Article 84 of the Conditions of Employment. It is important however that even with regard to them their position approximates closely, by virtue of references in the Conditions of Employment (Articles 87, 91, 92 and 93) to the provisions of the Staff Regulations, to the status of officials. At least it must be taken that the contractual relationships relate to public law. Reference must be made in particular to Article 90 of the Conditions of Employment, in which it is stated:
               ‘A member of the establishment staff of the Joint Nuclear Research Centre shall serve a probationary period of from three to six months, during which his employment may be terminated if his work has not proved adequate … On expiry of the probationary period, a member of the establishment staff shall be established in his post.’
               The definitive establishment of his legal relationship presupposes likewise an act by the competent authority and an act in respect of which the French and Italian versions of the Conditions of Employment significantly use the words ‘titulariser’ and ‘nominare’. This makes it appear arguable that the third paragraph of Article 148 may be considered to apply even in respect of persons who are seeking the status of establishment staff.
               Thus however one interprets the Community rules which come into consideration in relation to the first question, one is forced to conclude without exception that the European Court of Justice has jurisdiction to decide upon the problems at issue, which excludes the possibility of there being any jurisdiction in the national court under Article 155 of the Euratom Treaty.
            
         
               2.
            
            
               
                  On the second question:
               
               The court making the reference then asks whether the service relationship between the Community and officials and servants must invariably be based on an instrument of appointment, or may it, instead, be replaced by a decision of a judicial authority that a specific service relationship exists de facto.
               
               This can only mean, from the point of view of the court making the reference, whether in such cases a decision may be made by a national judicial authority.
               In view of the answer to be given to the first question, that is, after the finding that national courts have no jurisdiction whatsoever in such cases, I would like to content myself with the conclusion that the second question is pointless and does not need to be considered.
            
         
               3.
            
            
               
                  On the third question:
               
               Finally the court making the reference seeks to know whether, on the basis of recognition that a service relationship in fact exists, the Court is entitled to establish a direct service relationship between the Community and persons who, though apparently employed by firms of contractors to the Community, work on the latter's premises and use materials supplied by the Community for their work and act under the direction of its officials.
               If the third question is interpreted as asking whether the national court has such power, then what has been said on the second question applies. If on the other hand the question is taken literally, then it must be regarded as inadmissible as being irrelevant. The court is entitled to make such declarations in cases referred for a preliminary ruling, if — as is indicated in the judgment in Case 13/68 (Judgment of 19 December 1968, Salgoil v Italian Ministry for Foreign Trade, [1968] ECR 453) — it finds an obvious error on the part of the court making the reference. It is so in the present case, for all the national court can be concerned with is what powers it has in deciding the matter in dispute. How the Court of Justice would have to decide such a matter can certainly not be settled in proceedings for a preliminary ruling under Article 177, which are intended simply to give the national court assistance in reaching decisions; on this a declaration is only possible in the context of a direct action in a dispute between the Community and one of its servants, that is in an action which has been brought in accordance with the provisions of the Staff Regulations or of the third paragraph of Article 148.
            
         
               4.
            
            
               I accordingly propose that the questions raised by the Labour Commissioner at the Tribunale di Varese should be answered as follows:
               The national court has no jurisdiction in disputes between the Community and persons who claim the status of officials or that of establishment staff. The European Court of Justice has exclusive jurisdiction to decide such questions.
            
         (
            1
         )	Translated from the German.