JUDGMENT OF 5. 4. 1979 — CASE 116/78 BELLINTANI v COMMISSION

In Case 116/78

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President P. Pescatore and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows:

I — Facts and procedure

The applicants, who are all Italian nationals, were engaged as local staff by the Joint Research Centre, Ispra, between 1970 and 1974 and remunerated from research appropriations. Two of the applicants, Mr Gemelli and Mr Palombi, had been employed at the Centre from 1964 and 1967 respectively. They all had a technical qualification and were referred to as ‘periti’ [experts], and consequently were referred to as ‘Falsi Agenti Locali Diplomati’, abbreviated to F.A.L.D., which may be translated as ‘so-called local staff (qualified)’.

In the light of the proposal by a working party that the qualifications of the ‘Falsi Agenti Locali Diplomati’ should be regarded as equivalent to those of technicians one of the principal questions is whether their qualifications ought to have required the administration to classify such employees in Category B. Moreover, the record sheets describing the duties of the nine employees in question appear to refer to them as ‘Laboratory technicians (infrastructure)’.

The minutes of the meeting of the ad hoc Working Party on Falsi Agenti Locali held on 6 August 1976 state that ‘on the basis of a preliminary examination, the duties and/or qualifications appear to place’ a list of employees which includes all nine with the exception of Mr Del Grande who is in a special position, ‘on a level higher than Class 1 (Ref. establishment staff)’.

On 10 March 1976 a fresh ad hoc Working Party on Falsi Agenti Locali Diplomati met and laid down a classification the purpose of which was to enable a limited number of members of the local staff to become establishment staff. As there were only seven posts available in that group it was the seven employees at the head of the list who became establishment staff. They were also promoted to the status of officials in Category B.

In the meantime the Council of Ministers Working Party on Staff Regulations introduced new provisions intended to abolish the categories of local and establishment staff, whose position was unfavourable as compared to that of their colleagues to whom the Staff Regulations of Officials applied. Those provisions were given specific expression in Regulation No 2615/76. Emphasis was also laid on the need to safeguard acquired rights which was also stressed by the Parliament in Resolution No C 100, p. 38).

Furthermore, on the initiative of Mr Tugendhat, the Commissioner responsible for administration, a third ad hoc Grading Committee set up by the Commission met on 9, 10 and 11 June and on 1 July 1977. Its task was to consider ‘the problems of grading in Categories C and D raised by local or establishment staff in connexion with the implementation of Regulation No 2615/ 76’. As regards the applicants the new rules provide for a five-year contract, which is renewable if they enter Category B.

On 20 July 1977 the applicants received a letter from Mr Hannaert, Head of the Personnel Division, offering them the new contract.

Each of the nine applicants signed his contract between 27 and 29 July 1977. On 25 October 1977 they lodged a complaint within the meaning of Article 90 of the Staff Regulations of Officials, by which they sought appointment in Category B with a contract for an indefinite period and, therefore, the annulment of the new contracts which they had signed. That complaint was rejected on 20 March 1978.

The applicants then lodged the present application, which was received at the Court Registry on 17 May 1978.

II — Conclusions of the parties

The applicants claim that the Court should:

‘Primarily: Declare that the contract offered to the applicants is illegal and must therefore be annulled, since the applicants should have been graded in Category B with a contract for an indefinite period; Accordingly, annul the decision of the Commission of 20 March 1978 rejecting their complaint; In the alternative: Declare that Regulation No 2615/76 of 21 October 1976 has no legal basis as regards employees previously appointed, since such a decision could not ignore the rights to grading according to the duties performed and the rights previously acquired to a contract for. an indefinite period; In any event: Order the Commission to pay the costs’.

Whilst reserving the right to amend its conclusions in the course of the proceedings the Commission contends that the Court should:

‘Dismiss the application as unfounded; Order the applicants to bear the costs’.

The procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

III — Submissions and arguments of the parties

(a) Facts

In their statement of the facts the applicants emphasize the error which they consider to have been made by the administration on their recruitment, since it should have been compelled by their qualifications to classify them in Category; B. Thus, injury was already suffered by the applicants when the new rules came into force. Furthermore, since the result of the new rules is to replace a contract for an indefinite period by a contract for five years, the applicants suffer a double injury.

The applicants go on to describe the Commission's reply to the complaint through official channels as constat non possumus and to. refute the Commission's arguments by stating that what was involved in this instance was an integration procedure and that for that reason the case-law of the Court referred to by the Commission (Case 28/72, Tontodonati v Commission of the European Communities, [1973] ECR 779; Case 189/73, Van Reenen v Commission of the European Communities [1975] ECR 445, Case 77/70, Prelle v Commission of the European Communities, [1971] ECR 561), was inapplicable. On the contrary the case-law for the year 1963 (Joined Cases 20 and 21/63, Maudet v Commission of the European Economic Community, [1964] ECR 113, Case 102/63, Boursinv High Authority of the European Coal and Steel Community, [1964] ECR 691, Joined Cases 79 and 82/63, Reynier and Erba v Commission of the European Economic Community, [1964] ECR 259) must be referred to and, accordingly, it is ‘unthinkable that out of between 700 and 800 people integrated on the basis of those new rules, nine must suffer flagrant injustice …’.

The applicants justify the admissibility of their action as regards both the time-limit and their interest in bringing proceedings by referring to the fact that they are entitled to contest a contract which they have signed.

The defendant replies by recalling, first, that under the terms of Article 4 of the Conditions of Employment of Other Servants (before it was amended by Regulation No 2615/76) establishment staff at the Joint Research Centre are staff occupying posts in Category C or D whilst local staff are defined by the same article (in terms which are applicable) as ‘staff engaged according to local practice for manual or service duties, assigned to a post not included in the list of posts appended to the section of the budget relating to each institution and paid from the total appropriations for the purpose under that section of the budget’.

In the light of the mandatory limits on the list of posts relating to the aforementioned Conditions of Employment the administration of the Centre at Ispra engaged a number of members of the sun under the rules governing local staff. Entry into the ranks of the establishment staff was, therefore, only possible in Category C. That was in fact the aim of the ad hoc working party which submitted a report on 10 March 1976. The Commission also recalls that the ad hoc committee which met on its initiative in June and July 1977 unanimously confirmed in its report ‘the classification of the applicants in Category C, whilst acknowledging that they may subsequendy be eligible for entry into Category B, within the limits of the posts available’. The Commission recalls, finally, that the working parties only expressed aspirations which are in no way binding on the administration.

However, in their reply the applicants emphasize that even if the ‘recommendations’ of the working party concerning the equivalence of the technical qualifications ‘had no binding force’, they have been followed. They also state that the duties performed by all nine attach ‘indisputably’ to Category B and that in addition they “are engaged in work relating to the infrastructure without being involved in a specific research programme”. In that connexion and in order to support their reply the applicants produce in Annex I the record sheets describing their duties. They also stress their position, which ought to have been regularized at the same time as that of the seven employees who were promoted to Category B just before the new regulation was adopted. In addition, they express reservations concerning both the manner in which the selection was made — which they consider “too hasty” — and the composition of the selection committee, on which both sides were not equally represented. What is more, the nine employees in question no longer have even a possibility of promotion available, since Article 92 of the Conditions of Employment of Other Servants, which governs promotion, is repealed by Regulation No 2615/76.

In its rejoinder the defendant is anxious to recall the exact role of the various committees and, in particular, to make it clear that they only express opinions. It disputes the reservations expressed by the applicants as regards the “questionable haste” shown by the ad hoc grading committee. It also contests in the reservations expressed as regards equality of representation, since a reading of the report drawn up by that committee shows that the representatives of the staff were in disagreement with those of the administration over the classification of certain employees.

As regards possibilities of promotion, whilst it is true that Article 92 of the Conditions of Employment of Other Servants is repealed opportunities for promotion are nevertheless available to the applicants, since they are covered by the “General provisions to give effect to the procedure for promoting staff paid from research appropriations” contained in “Administrative Bulletin No 197” of 28 April 1978, pp. 22 to 25 (annexed by the defendant) as a result of Article 9 of those provisions.

(b) Law

In support of their application the applicants have put forward nine principal submissions, which may be summarized in the form of seven, since they pursue only seven of them.

(1) Infringement of Annex IB to the Staff Regulations

The applicants, who consider that they have “proved”, through their statement of the facts, that they performed the duties of laboratory technicians, by reference to the excellence of their qualifications, the record sheets and a letter from Mr Hannaert of 20 July 1977 (contained in the file as Annex 6 to the application), which acknowledges the right of each of the applicants to be classified in Category B and, therefore, recognizes that Annex IB to the Staff Regulations was applicable to them — since Regulation No 2615/76 renders applicable to the staff already in employment Title II of the Conditions of Employment of Other Servants, Article 10 of which refers to the table in Annex IB to the Staff Regulations — consider that the Commission was under an “obligation ittris et de iure to classify the servants already in employment according to the table in Annex IB, that is to say, in Category B”.

The Commission contests the reference to the letter from Mr Hannaert, “which does not acknowledge” a right to classification in Category B but merely recognizes “idoneita”, that is, “eligibility or fitness to enter that category, subject to observance of the procedures provided for in respect of such a change of category”. Moreover, Annex IB to the Staff Regulations, which is in fact applicable in this case, does not place all the laboratory technicians in Category B, since the term “laboratory technician” is also applied to laboratory staff classified in Grade C3. Thus, the principle of correspondence between the basic posts and career brackets of employees in the scientific and technical services established by that annex has been respected.

While accepting the argument of the defence as regards the question of “idoneita” the applicants consider that “it would be improper and a misuse of powers to assure a person that he is eligible for the higher career bracket if by the adoption of a contract as a member of the temporary staff (for which there is no career bracket) he could be compelled to give up that eligibility so as to confine himself to the provisions of the third paragraph of Article 10 of the Conditions of Employment of Other Servants, that is, in favour of accepting a supplementary agreement for higher grade duties”.

In its rejoinder the defendant notes that the theory of “idoneita” has been accepted by the applicants, with the result that there could be no infringement of Annex IB to the Staff Regulations, and it states again that opportunities of promotion do exist (vide observations on the facts).

(2) Discrimination between employees in the same career bracket

The applicants consider that they have been the victims of “discrimination”, which they justify by reference to Article 5 (3) of the Staff Regulations and to “a universal principle of law established in the labour laws of all the Member States of the Community, to the effect that no contract may give rise to such discrimination”. Although Article 10 of the Conditions of Employment of Other Servants does not expressly refer to Article 5 (3) of the Staff Regulations the applicants nevertheless maintain that “discrimination” cannot be permitted between members of the temporary staff and points out, in particular, that seven employees were permitted to enter Category B with a contract for an indefinite period “just before the entry into force of the new rules” at which time their position was identical to that of the applicants. The applicants also rely on the recognition of acquired rights, as referred to in the minutes of the meeting of the Working Party on the Staff Regulations of 11 November 1974, No 3, p. 2 (Doc. R.3094/74), and in the recitals to Regulation No 2615/76.

The defendant disputes the applicants' analysis of the situation. It maintains that the employees in question were promoted to the status of officials in Category B and thereby acquired a ‘position governed by the Staff Regulations independent of any contractual relationship and therefore incompatible with the existence of a “contract for an indefinite period”’. It also rejects the argument relating to the application of Article 5 (3) of the Staff Regulations, since that provision deals only with the conditions of recruitment and service career of officials, and temporary staff cannot be likened to officials. As regards the “universal principle of law” referred to by the applicants, the defendant doubts its very existence, having regard to the very imprecise manner in which it is formulated. In any event, it would not be applicable since the discrimination alleged to exist is between employees on a contractual basis and officials. Finally, “on a general level the defendant does not see in what way the applicants have suffered discrimination”, since the recruitment of the employees in question as officials in Category B “was not vitiated by any irregularity as is accepted by the applicants, who have not sought the annulment of the recruitment decisions”.

As regards the recognition of acquired rights, the defendant considers that the applicants are not justified in relying on that submission, since, first, they have no right to be classified in Category B, secondly, the recitals to Regulation No 2615/76 concern only officials and, thirdly, the reference to the work of the ad hoc Working Parry on “Falsi Agenti Locali Diplomati” is irrelevant in this instance (vide the defendant's observations on the facts).

To that the applicants reply that the “discrimination is so obvious that no further evidence is required”. They repeat that their position was identical to that of the seven employees who were promoted just before the new regulation was implemented. To prove the existence of that discrimination the applicants refer to the case of Mr Merli who, although placed last in the classification drawn up by the ad hoc committee, was selected in preference “to his colleagues who were placed before him on the list”.

They also claim that the Commission is in error in arguing that two groups existed, namely officials and establishment staff. They state that “after the cases of seven of the employees were dealt with there still remained nine others whose positions were identical, namely, the nine applicants”. At that moment, therefore, no distinction could be drawn between officials on the one hand and employees on a contractual basis on the other, but in all seven plus nine employees in the scientific and technical service who had to be classified before the new regulations entered into force.

In reply to the argument that no more than seven posts were available the applicants produce in Annex II to their reply a memorandum dealing with the position as regards staff at the Centre on 30 June 1978, which shows that for the year 1977/1978 682 posts were authorized for employees in Category B, of which only 670 were occupied. Thus, in the opinion of the applicants it was possible for the discrimination to be avoided, which shows that the measure in question is “arbitrary and unlawful”.

Furthermore, the applicants contest “that the ad hoc Tugendhat committee acted in accordance with the annual promotion procedure”, since that committee “took no account of the provisions” applicable to that procedure.

Finally, the applicants maintain that they are the holders of an acquired right, since the seven who were promoted were not officials before they entered Category B and all nine applicants perform duties falling within Category B.

The defendant considers that the argument that the applicants suffered discrimination when the seven other employees were promoted “is inadmissible, since the applicants did not lodge either a complaint or an application within the prescribed time against the decisions to appoint them”. Contrary to the statements made by the applicants the Court may be seised of an application by an employee who claims the status of a member of the establishment staff or of an official (vide Case 65/74, Porrini and Others v The European Atomic Energy Community and Comont S.p.A. and Bellintani and Others v The European Atomic Energy Community and Cemi S.p.A., [1975] ECR 319). It is therefore only as an alternative submission that the Commission repeats that the seven employees in question were not “selected” by the ad hoc Grading Committee set up by Mr Commissioner Tugendhat, but were appointed officials within the context of the annual procedures for promotion in application of Article 9 of the Conditions of Employment of Other Servants. Those employees were therefore not appointed members of the establishment staff and then officials in Category B at one and the same date and in one and the same measure. The Commission maintains that the applicants put forward no evidence to prove that the “Tugendhat Committee” failed to respect the procedure laid down for the promotion of staff.

Finally, as regards the argument concerning the number of posts authorized the defendant refers to a rule of budgetary administration which provides that “the excess number of employees in Category C (as.may be seen from Annex 2 to the rejoinder) must be set off against the posts available for employees in Category B”.

(3) Liability for error and the failure of the administration to provide assistance

The applicants“claim” that the administrative authority must acknowledge that its classification of them was erroneous. To that end they produce in Annex I to their application a document drawn up by a working party set up by the administration of the Joint Research Centre, which states that “the working party agrees unanimously that all technicians engaged in the future shall be classified in Category B …”. Since, therefore, the administration cannot take refuge in “ignorance of the facts and consequences” it is responsible for their present situation. The applicants also criticize the failure of the administration to provide assistance “in accordance with Article 25 of the Staff Regulations”.

The Commission emphasizes that the applicants freely accepted their contractual position and brought no action against their classification. What is more, this application is “clearly out of time”. The defendant describes the document produced by the applicants in Annex I to their application as a “working document containing certain considerations and aspirations” rather than as a “directive” drawn up by the administration, as is claimed by the applicants. Such a document has, therefore, no binding effect on the administration and cannot prevail over Annex IB to the Staff Regulations, which was in force when the applicants were engaged. As regards the alleged failure of the administration to provide assistance the defendant points out, first, that the applicants do not indicate in what way the administrative authority failed in its duty to provide assistance (which exists by virtue of Article 24 of the Staff Regulations and not Article 25 as stated by the applicants) and, secondly, that Article 24 does not require the administration “to watch over the career” of its employees but rather to facilitate their vocational training so that their careers may progress”. That submission of the applicants is therefore without any basis either in fact or in law.

Nevertheless, the applicants re-state their views that the minutes of the meeting of the working party which met in 1964 are not simply a catalogue of aspirations but, on the contrary, formulate ‘directives’ which ‘have been implemented as far as possible’ and, what is more, do not result in any contradiction as regards the application of Annex IB to die Staff Regulations, since they ‘coincide with it in every particular’.

As regards the alleged inadmissibility of the action arising out of the unlawful nature of the ‘errors affecting their appointment’, the nine applicants maintain that at the time of their engagement they ‘did not have access to the Court’ but that since they are now recognized ‘by the established case-law of the Court’ as having that right ‘it will be possible for past irregularities to be reexamined’.

Finally, the applicants justify their charge of failure to provide assistance by reference to the fact that the administrative authority failed to inform the Council of their case and, thus, failed to fulfil the ‘Fursorgepflicht’ [duty to provide assistance] existing under German law, which is acknowledged by Article 24 of the Staff Regulations.

As regards the inadmissibility of the action regarding the unlawful nature of the ‘errors’ on the part of the administration, the defendant refers to its observations on the preceding point. It goes on to state that differences exist between the conclusions reached by the 1964 working party and Annex IB to the Staff Regulations. The former pronounced itself in favour of the ‘simple abolition of categories’ and the recruitment of laboratory technicians in Grade B 5/1, whereas the latter divided the staff of the scientific and technical services into categories and grades and placed the laboratory technicians in Categories B and C. As regards the alleged failure to provide assistance, the defendant feels that by acknowledging that the applicants are eligible to enter Category B should the occasion arise and by safeguarding their chances of promotion (vide the statement of the facts by the defendant), it has fulfilled its obligation.

(4) Inapplicability of Regulation No 2615/76 to the applicants' case

The applicants consider that Regulation No 2615/76 does not apply to their case and maintain that they have acquired rights which antedate the implementation of that regulation, since ‘the ad hoc working party, which included such people as Mr Niemeyer, Mr Debriey and Mr Chambaud, who, as regards the applicants' careers, represented the appointing authority, effectively bound the institution’ and there is therefore a positive act confirming the acquired rights.

The defendant recalls that Regulation No 2615/76 also applies to the staff in employment before its entry into force and repeats that the ad hoc Working Party on ‘Falsi Agenti Locali Diplomati’ can only express aspirations which are not binding on the administration. It was therefore impossible for the alleged acquired rights to be ‘recognized’ by the ad hoc Working Party.

The applicants point out once again ‘that they had qualifications which ought to have compelled the administration to classify them on their recruitment in Grade B 5 at the least’. Their acquired rights and, in consequence, the inapplicability of Regulation No 2615/76 to their particular case are therefore clearly established.

The defendant merely observes that by maintaining that they were entitled to classification as establishment staff prior to the entry into force of Regulation No 2615/76 the applicants acknowledge by implication that their classification in Category C was justified, having regard to the former Article 4 of the Conditions of Employment of Other Servants which was in force at that period.

(5) The ‘unlawful nature’ of Regulation No 2615/76

The applicants claim, in the alternative, that Regulation No 2615/76 is unlawful ‘at least inasmuch as Regulation No 2615/76 does not allow a solution to be found which is in accordance with their interests and their rights’. As regards the question of jurisdiction they rely on Articles 173 and 184 of the Treaty of Rome, which ‘enable the Court to consider, even after the expiration of the period for bringing proceedings, whether a Council regulation infringes any rule of law’. As regards the substance they rely on two ‘general principles’, namely, ‘the prohibition of discrimination’ and ‘equal pay and conditions for equal work’. Those two principles have not been observed, since the employees who were promoted to Category B were also ‘Falsi Agenti Locali Diplomati’ and ‘in the much-quoted working party the authorities had acknowledged that the position of all the members of that group was the same’.

The defendant states that the ‘principle of non-discrimination’ relied on by the applicants, which, in its opinion, appears to correspond to the principle ‘of equal treatment’ accepted by the Court, ‘cannot be applied to the difference in conditions of employment which exist between contract staff and officials’. Such differences exist in the present case, since those former members of the establishment staff who have been promoted to Category B have an acquired right not to have their period of service reduced to five years. On the other hand, such a temporal limitation may be imposed on the temporary staff. As regards Regulation No 2615/76 the temporary surf perform their duties within the context of research programmes which last for five years at the most. It therefore seems logical for the administration to recruit employees in Categories C and D for an indefinite period and for the staff in Categories A and B, whose duties are closely connected with the research programme, to receive contracts of the same duration as the programme. That view is also represented in the Resolution of the European Parliament (No 100/38 of 3 May 1976, produced by the defendant in Annex II), which states that Regulation No 2615/76 ‘basically allows for a greater mobility of research staff, which is also determined by decisions on programmes’. The two principles relied on by the applicants are therefore without foundation, which means that the legality of Regulation No 2615/76 cannot be called in question.

The applicants point out that the discrimination occurs on the promotion of the seven to Category B, which means that the defendant's argument, which distinguishes between officials who were formerly on the establishment staff on the one hand and establishment staff on the other, is without foundation. While agreeing in principle with the reasons given by the Commission in favour of a five-year contract for Categories A and B the nine applicants produce evidence showing that they perform infrastructure duties and that they cannot therefore be involved in the principle of mobility referred to.

The defendant maintains that ‘discrimination’ which is alleged to have occurred before the entry into force of Regulation No 2615/76 cannot result in the regulation's being unlawful. Furthermore, the defendant has already disproved the existence of any such ‘discrimination’(vide second submission). As regards the argument that the applicants — who are laboratory technicians (infrastructure) — cannot be involved in the principle of mobility, the Commission considers that ‘it clearly cannot be contested that the size and type of infrastructure of a research centre are closely linked to the research programmes carried out’.

(6) The ‘absurd consequences’ of Regulation No 2615/76

The applicants maintain that the result of the administration's interpretation of the new regulation is a reductio ad absurdum since, in accordance with the reply given by Mr Tugendhat, entry into Category B will compel acceptance of a contract for five years which means that, as a result of a wrongful act on the part of the administration, the applicants will prefer to remain as ‘Falsi Agenti Locali Diplomati’. That requirement for contracts to be entered into for a definite period is confirmed by the Circular of 6 July 1977 from the Head of the Personnel Division, which is quite definite on that point. (The circular is produced in Annex VI to the application.)

The Commission considers that far from being absurd the limitation on the length of service is fully justified by virtue of the duration of the research contracts.

However, the applicants maintain that the application of that new regulation against the background of the third paragraph of Article 10 of the Conditions of Employment of Other Servants is a ‘final bar’ to the pursuit of their careers and that for that reason the consequences of that regulation ‘are absurd’.

The defendant merely repeats that, as it has already shown, the opportunities open to the applicants for the pursuit of their careers remain available.

(7) Application of the principles laid down by the Court in the course of integration procedures

That submission is based on the need to apply to the present case the case-law laid down by the Court in the context of the integration procedures. The applicants revert to the three judgments of 1963 referred to above and express the view that ‘they all emphasize the need for integration to be based on the correspondence between duties and basic posts’. The applicants conclude that their position is identical to those discussed in the three judgments in question and that having regard to their status as technicians it was impossible for them to be classified in Category C.

Finally, the applicants stress that should they not receive satisfaction from the Court they would nevertheless accept the new contracts signed by them in July 1977.

The defendant considers that the amendment introduced by Regulation No 2615/76 cannot be compared to an integration procedure, which is governed by precise rules laid down by Articles 102 and 107 of the Staff Regulations, since, first, those rules are not applied by the regulation at issue and, secondly, the procedure laid down by that regulation ‘could not have the effect of converting a member of the contractual staff into an official’. However, “even if it had to be accepted that Regulation No 2615/76 has in fact effected an integration procedure, the defendant points out that it has already shown in its reply to the first submission that those provisions did not violate the correspondence between basic posts and career brackets. The defendant observes in the alternative that even if it were accepted that the applicants perform duties which correspond to a grade higher than their own, that would not confer on them a right to reclassification but could only be “a factor to be taken into account for the purposes of promotion”.

The applicants note that the defendant “is not greatly hostile” to the application of the integration theory. They maintain that the “Tugendhat Committee” was in fact an establishment board and that it even considered accepting their claim in the course of the annual promotion procedure. It is therefore clearly the integration theory which the Court must apply.

The defendant repeats that the present case cannot be likened to an integration procedure and that, furthermore, “both the composition and the powers of the ad hoc committee were fundamentally different from those laid down for the Establishment Board by Article 102 (1) of the Staff Regulations”.

IV — Oral procedure

The parties delivered oral argument at the hearing on 15 February 1979 and replied to questions raised by the Court. The Court agreed that a further document should be added to the file on the day of the hearing concerning the appointment of Mr Mascheroni as an official in Grade B 5 on 27 October 1976

The Advocate General delivered his opinion at the hearing on 15 March 1979.

Decision

1. The application, which was lodged by nine employees who at first were recruited as local staff by the Joint Research Centre at Ispra and who subsequently accepted classification either in Category C for an indefinite period or in Category B for a renewable period of five years in accordance with the provisions of Regulation No 2615/76 of the Council of 21 October 1976 relating to the Conditions of Employment of Other Servants of the European Communities (Official Journal No L 299 of 29 October 1976, p. 1), requests the Court to declare, principally, that the new contract between them and the administration is “unlawful and must therefore be annulled, on the ground that the applicants were entitled to be classified in Category B with a contract for an indefinite period” or, in the alternative, that Regulation No 2615/76 “has no legal basis, as regards employees previously appointed”.

2. The applicants, all of whom have a technical qualification, were recruited as local staff in accordance with the administrative practice applied until the entry into force of Regulation No 2615/76, which reorganized the conditions under which laboratory technicians were in future to be recruited for the Ispra Centre, as were seven other laboratory technicians, six of whom entered the ranks of the establishment staff on 30 March 1976 and were subsequently promoted and established as officials in Category B on 27 October 1976.

3. In support of their conclusions the applicants put forward a series of grounds of complaint which, for the purpose of clarity, should be regrouped into six principal submissions, which will be examined in turn.

4. The applicants first maintain that their recruitment as local staff in Category D was incorrect and constituted an infringement of Annex IB to the Staff Regulations, since their qualifications should have entitled them to classification in Category B.

5. The applicants have never contested their initial classification as local staff.

6. They could have done so within the prescribed period, since it is not only persons who have the status of officials or of employees other than local staff who may bring an action before the Court to contest a decision adversely affecting them but also persons claiming that status.

7. Accordingly, the request for their initial classification to be reviewed on the basis of Annex IB to the Staff Regulations is today inadmissible.

8. Secondly, the applicants maintain that Regulation No 2615/76 is not applicable to them, on the ground that when it was adopted they were already in the service of the Community.

9. However, Article 2 (1) of Regulation No 2615/76 provides that the regulation shall be applicable to local staff and paragraph (5) of that article similarly provides that the contract of any member of the local staff who does not accept within six months the offer made by the administration shall be terminated.

10. Accordingly, Regulation No 2615/76 is applicable to the applicants, as it is to all members of the local and establishment staffs who were in the service of the Community on its entry into force.

11. In a third submission the applicants maintain that before the entry into force of Regulation No 2615/76 their position was the same as that of the members of the local staff who were subsequently made officials in Category B, so that there was discrimination as between them and those promoted.

12. The appointment of those employees as establishment staff and their subsequent promotion as officials to Category B in the budgetary posts available has never been contested and can therefore no longer be submitted for review by the Court of Justice.

13. In those circumstances the applicants are wrong to claim the existence of possible discrimination between officials on the one hand and local staff on the other.

14. In a fourth submission the applicants maintain that the administration has failed in its duty to provide assistance deriving from Article 24 of the Staff Regulations.

15. According to the terms of that article the Community is required to assist its officials, first, in order to defend them against, certain risks arising from their duties, and emanating in particular from third parties, and, secondly, to facilitate their further training and instruction.

16. The difficulties experienced by the applicants as regards progress in their careers do not entitle them to claim that there has been a failure to fulfil the duty to provide assistance, understood in the above sense.

17. That submission must therefore be dismissed as irrelevant.

18. In a fifth submission the applicants maintain that to limit the duration of the contract to five years in Category B has “absurd consequences” and that the regulation is “nothing more than a bar to the pursuit of their careers”.

19. An opportunity for promotion is open to the applicants, since they are covered by the terms of the “General provisions to give effect to the procedure for promoting staff paid from research appropriations” (Administrative Notices No 197 of 28 April 1978) which apply to “temporary staff holding contracts”.

20. It should also be noted that the contracts of employment in question are renewable.

21. Accordingly, it appears that Regulation No 2615/76 is especially adapted to the employment of staff who perform duties calling for scientific and technical qualifications and who are paid from appropriations in the research and investment budget.

22. In a sixth submission the applicants maintain that the real aim of Regulation No 2615/76 was to carry through an integration procedure and that the“Tugendhat Committee”, which was set up by the Commission in 1977 for the implementation of that regulation, is in fact nothing more than an establishment board.

23. However, Article 2 of Regulation No 2615/76 cannot in any way be regarded as providing the means for temporary staff to become officials and the measures provided for by that article are for that reason very different from the procedures relating to integration described in Articles 102 and 107 of the Staff Regulations.

24. Moreover, the Tugendhat Committee cannot be regarded as an establishment board, since, first, both sides were equally represented on it and, secondly, its task was to rule on complaints concerning classification.

25. The principal claims put forward by the applicants as respects the whole of their submissions must be dismissed.

26. The applicants request the Court in the alternative to declare Regulation No 2615/76 invalid on the ground that it is in breach of the principles of non-discrimination and of equality of treatment.

27. The applicants' argument amounts to contesting the regulation on the ground that it does not ensure that they will receive appointments in Category B, in the same way as the six employees who were previously appointed as officials and whose appointments cannot henceforth be contested.

28. Even though, on an appropriate occasion, the applicants may possibly aspire to such an appointment, they cannot claim a right to it.

29. They cannot, therefore, rely on the principle of non-discrimination in order to create such a right.

30. Furthermore, Regulation No 2615/76 offers them the opportunity of obtaining renewable contracts for five years in Category B.

31. That period has already been considered to be logical.

32. Furthermore, opportunities for promotion do exist.

33. Therefore the alternative conclusions must also be dismissed.

Costs

34. The applicants have failed in their submissions.

35. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

36. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.