JUDGMENT OF 13. 5. 1982 — CASE 16/81 ALAIMO / COMMISSION

In Case 16/81

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

Mrs Alaimo, who was born on 28 December 1942, has since 1 December 1976 been employed by the European Centre for the Development of Vocational Training established bv Regulation (EEC) No 337/75 of the'Council of 10 February 1975 (Official Journal 1975, L 39, p. 1).

In 1980 she applied to be admitted to take pan in Open Competition No COM/LA/315 (Official Journal 1980, C 225, p. 8), which was based on tests and organized by the Commission of the European Communities to constitute a reserve of translators.

Among the specific conditions for admission to the competition there was the following condition relating to the age-limit: “Candidates must have been born after 15 October 1948. This age-limit does not apply to candidates who on 15 October 1980 have been employed by an institution of the European Communities for at least one year.”

By a letter dated 7 November 1980 the Head of the Commission's Recruitment Division informed Mrs Alaimo that her application had not been accepted on the ground that the age-limit prescribed in the Notice of Competition — which in the applicant's case had in fact been exceeded — was mandatory except where the candidate had already been employed by the Communities for at least one year.

On 28 January 1981 Mrs Alaimo brought this application.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

Mrs Alaimo claims that the Court should:

Annul the decision of the Selection Board for Open Competition No COM/LA/315 not to admit her to the competition;

Order the Commission to reopen, as regards the applicant, the procedure relating to Open Competition No COM/LA/315;

Order the Commission to pay the costs.

The Commission contends that the Court should:

Declare the application unfounded;

Make an appropriate order as to costs as provided for by the law.

III — Contentions and arguments of the parties

Mrs AJaimo's contention is that on 15 October 1980 she had been “employed by ... the European Communities” for at least one year and that she was therefore entitled to benefit from the exemption from the age-limit provided for in the Notice of Competition in favour of persons showing that they came within those terms.

In support of that contention Mrs Alaimo makes the following claims:

The European Centre for the Development of Vocational Training (hereinafter referred to as “the Centre”) is a body of public Community law since it was established by the Council, pursuant to Article 235 of the EEC Treaty, to achieve one of the objectives of the Community, in this case one of the tasks assigned to the Commission by-Article 118 of the Treaty, and since it was “set up within the framework of the European Communities and will function in accordance with Community law” (cf. the second and sixth recitals in the preamble to Regulation No 337/75, mentioned above, establishing the Centre);

The staff of the Centre thus perform a public Community service and, moreover, are subject to special conditions of employment which derive from Community law (cf. Council Regulation (ECSC, EEC, Euratom) No 1859/76 of 29 June 1976 laying down the Conditions of Employment of Staff of the European Centre for the Development of Vocational Training (Official Journal 1976; L 214, p. 1) and Council Regulation (EEC, Euratom, ECSC) No 1237/80 of 13 May 1980 amending Regulation No 1859/76 (Official Journal 1980, L 127, p. 1);

The Protocol on the Privileges and Immunities of the European Communities applies both to the Centre (cf. Article 16 of Regulation No 337/75 and to its employees (cf. the first paragraph of Article 55 of Regulation No 1859/76);

Staff of the Centre are exempt from national taxes on their salaries, wages and emoluments paid by the Centre, which deducts from them the Community tax (cf. the first paragraph of Article 55 and Article 56 of Regulation No 1859/76);

The Court of Justice of the European Communities has jurisdiction in any dispute between the Centre and its staff (cf. Article 44 of Regulation No 1859/76).

On the basis of the foregoing considerations Mrs Alaimo considers that employees of the Centre are servants of the European Communities and that since on 15 October 1980 she had been employed by the Centre for nearly four years she ought to have been granted the benefit of the exemption from the age-limit.

To lend further weight to her arguments Mrs Alaimo adds ex abundanti cautela that Regulation No 1237/80, which states in the fourth recital that it is desirable to align certain provisions of the conditions of employment of staff of the Centre with those applicable to officials of the European Communities, appears to acknowledge at the same time that the staff have the status of servants of the European Communities. That conclusion may also be drawn from a resolution of the European Parliament of 19 September 1980 in which it is affirmed inter alia that the staff of the Centre should be recruited in accordance with the rules applicable to the recruitment of officials of the institutions and that recruitment of the staff of the Centre should be carried out from the lists of candidates who have been successful in competitions organized by Community institutions or by secondment of officials serving in the institutions, and that it is necessary “to improve the possibilities for mobility between the Centre and the institutions”.

In her reply Mrs Alaimo poses the question whether in the notice of competition which gave rise to the dispute the expression “employed by ... the European Communities” should be given a special restrictive meaning so as to include only the staff of Community institutions. She replies that the expression should be construed in its broadest sense as including the staff of institutions as well as the staff of bodies established under public Community law.

The reason for the exemption from the age-limit is that the administrative authority does not wish, as regards the condition relating to age laid down for admission to a competition, to place on the same footing candidates coming from outside and candidates who are already employed by the European Communities and in respect of whom it is a question not of entering into the service of those institutions but of progressing in their careers or obtaining established status. To some extent it is necessary to apply similar reasoning to that applied by the Court of Justice in order to admit auxiliary staff to internal competitions organized by the institutions. Employees of Community bodies established by secondary legislation on the basis of Article 235 of the Treaty also take part in the tasks assigned to the Communities and are already “members of the family”, with the result that it is logical to apply to them wider and more generous conditions for admission to open competitions than those which are applied to external candidates.

In conclusion Mrs Alaimo considers that it is appropriate to recall that, according to the terms of the judgment delivered by the Court in Joined Cases 27 and 39/59 Alberto Campolongo v High Authority of the ECSC [1960] ECR 391 concerning the application of the provisions of Article 12 (a) of the Genera! Staff Regulations of the ECSC to an official who had left the High Authority in order to enter the service of the European Investment Bank, “these provisions must be interpreted in the light of the operational unity of the European Communities and associated institutions”. For the purpose of interpreting the expression “employed by... the European Communities” appearing in the applicable provision, it is also important to have regard to that concept of the operational unity of the European Communities and associated bodies, particularly since in the present case there is a specific operational unity between the Commission, which organized the disputed competition, and the Centre, which is specifically charged with one of the tasks assigned to the Commission pursuant to the EEC Treaty.

The Commission considers that solely the staff of the three legal persons constituting the Communities, who are covered by the same conditions of employment irrespective of the Community to which they belong, may be regarded as “servants of the Communities” within the meaning of Article 1 (1) (g) of Annex III to the Staff Regulations concerning exemption from the age-limit.

The expression therefore refers solely to the employees of the organs of those legal persons, that is to say to the employees of the Community institutions (or of those bodies which the Staff Regulations of Officials treat as such for the purposes of those regulations) and not to the employees of other Community bodies established directly by the Treaty or in implementation thereof which constitute legal persons distinct from the Communities.

The “servants of the institutions” are the officials, temporar) servants and members of the auxiliary staff of the Council, the Commission, the Court of Justice and the Parliament and those of the Economic and Social Committee and of the Court of Auditors, which, under the terms of the second paragraph of Article 1 of the Staff Regulations of Officials, save as otherwise provided for, shall, “for the purpose of these Staff Regulations, be treated as institutions of the Communities.”

As regards other Community bodies, the Commission acknowledges that in its judgment of 15 June 1976 in Case 110/75 Mills v Investment Bank [1976] ECR 955 the Court of Justice held that it had jurisdiction in disputes between the European Investment Bank and its servants on the basis of Article 179 of the EEC Treaty, which states thai “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”.

The Commission maintains however that that judgment is of limited effect since the Court merely held that servants of the Bank were to be considered servants of the Communities for the purpose of Article 179 of the EEC Treaty.

It does not follow from that judgment that the staff of the Bank must be treated as servants of the institutions for all purposes, including the application of Article 1 (1) (g) of Annex III to the Staff Regulations. That applies a fortiori to the staff of other bodies, such as the Centre, in view of the fact that the Bank was established directly by the Treaty and its Statute is the subject of a Protocol annexed to the Treaty, whilst the other bodies were established subsequently pursuant to Article 235 of the Treaty.

More particularly, although the staff of the Centre benefit from the privileges and immunities conferred on servants of the Communities and are considered as coming within the jurisdiction of the Court of Justice of the European Communities as regards any disputes between them and the Centre, it is only as a result of the express provisions of Regulations Nos 337/75 and 1859/76 that they are treated, to that extent and to that extent only, as servants of the European Communities.

The exemption from the age-limit, which like any exemption must be strictly interpreted, is intended to benefit candidates already within the Communities. The Centre, however, has a legal personality of its own. distinct from that of the Communities, and its staff are covered by conditions of employment which, whilst being based on the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, nevertheless remain distinct. Recruitment to the Centre is not accompanied by the same guarantees as recruitment to the institutions. Those differences are of such a nature as to preclude the exemption, provided for in favour of servants of the Community institutions, from being extended to staff of the Centre.

As regards the judgment in the Campolongo case mentioned by Mrs Alaimo in support of her contention, the Commission recalls that that judgment was delivered in 1960 against the background of the imminent merger of the institutions of the three Communities and the laying down of uniform Staff Regulations. Since that time the merger has taken place and uniform Staff Regulations, equally applicable to employees of the European Investment Bank, have been adopted, but that process of unification has not been extended to Community bodies established in implementation of Article 235 of the EEC Treaty, which have their own legal personality and whose staff are covered by separate regulations.

IV — Oral procedure

The parties presented oral argument at the sitting on 21 January 1982.

The Advocate General delivered his opinion at the sitting on 18 February 1982.

Decision

1. By application dated 28 January 1981, which was lodged at the Court Registry on 2 February 1981, Agata Alaimo, an employee of the European Centre for the Development of Vocational Training (hereinafter referred to as “the Centre”) brought an action for the annulment of the decision of the Selection Board for Open Competition No COM/LA/315 not to admit the applicant to that competition, which was organized by the Commission to constitute a reserve of translators.

2. As appears from a letter dated 7 November 1980 by which the Head of the Commission's Recruitment Division notified the applicant of the contested decision, Mrs Alaimo was not admitted to the tests on the ground that she exceeded the age-limit laid down in the notice of competition and in the opinion of the Selection Board did not satisfy the requirements needed to benefit from the exemption from the age-limit expressly granted to candidates who on 15 October 1980 had been “employed by... the European Communities for at least one year.”

3. The abovementioned exemption was based on Article 1 (1) of Annex III to the Staff Regulations of Officials of the European Communities laying down the procedures to be adhered to in competitions, the terms of which are as follows:

“Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.

It must specify:

...

g) where appropriate, the age-limit and any extension of the age-limit in the case of servants of the Communities who have completed not less than one year's service;

...”

4. Mrs Alaimo claims that staff of the Centre are “employed by... the European Communities” within the meaning of the notice of competition. She adds that there are no grounds for interpreting that expression as relating exclusively to servants of Community institutions or of bodies expressly treated as such by a provision of the Staff Regulations. She concludes that by virtue of the fact that she entered the service of the Centre on 1 December 1976 she has been employed by the Communities since that date and therefore on 15 October 1980, the date of expiry of the period specified for submitting applications for Competition No COM/LA/315, she satisfied the conditions required in order to benefit from the exemption from the age-limit.

5. The Commission maintains, for its part, that the expression “employed by ... the European Communities” is to be understood as meaning only officials and servants of Community institutions or of bodies expressly treated as such by a provision of the Staff Regulations.

6. Although the expression used in the notice of competition “employed by ... the European Communities” differs slightly in its actual wording from the term appearing in Article 1 (1) of Annex III to the Staff Regulations (“servants”), there can be no doubt that the meaning is the same in both cases. Since the definition of “servant” was not given in the abovementioned article, its scope must be determined in the light of the totality of the provisions in which it appears, the provisions of the Treaty being examined first. It may be seen that each time the word “servant” appears in a provision of one of the Treaties (first sentence of the second paragraph of Article 40 of the ECSC Treaty; Anieles 179 and the second paragraph of Article 215 of the EEC Treaty; Article 152 and the second paragraph of Article 188 of the EAEC Treaty; Article 24 (1) of the Treaty establishing a Single Council and a Single Commission of the European Communities) it is linked with the word “Community”.

7. The determination of this dispute thus depends upon the reply to be given to the question whether the expression “employed by... the European Communities” also embraces staff of the Centre. In order to reply to that question it is necessary and sufficient to ascertain whether the Centre is pan of the “European Communities”.

8. In that respect it must first of all be pointed out that Article 16 of Regulation No 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training provides that “the Protocol on the Privileges and Immunities of the European Communities shall apply to the Centre”.

9. The privileges and immunities enjoyed by the European Communities were conferred on them, as is stated in Article 28 of the Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities, in order to facilitate “the performance of their tasks” and cannot apply to bodies which play no pan in performing those tasks. By stating that the Protocol on the Privileges and Immunities was to applv to the Centre, the Council thereby acknowledged that it had the character of a Community body.

10. Secondly, it should be noted that under the terms of Article 44 of Council Regulation (ECSC, EEC, Euratom) No 1859/76 of 29 June 1976 laying down the Conditions of Employment of Staff of the European Centre for the Development of Vocational Training “the Court of Justice of the European Communities shall have jurisdiction in any dispute between the Centre and any person to whom these Conditions of Employment apply regarding the legality of an act adversely affecting such a person within the meaning of Article 43 (2)”.

11. Since under the provisions of the Treaties the Court's jurisdiction in staff actions is limited to disputes arising between the Communities and their servants. Article 44 aforesaid necessarily implies that the Centre is pan of the European Communities.

12. Moreover, the Centre was established by the Council, pursuant to Article 235 of the EEC Treaty, in order that it might contribute, by its activity, to achieving the objectives of the Communities and in particular to the harmonious development of economic activities. It therefore plays a part in the tasks which the Treaties have assigned to the Communities.

13. In view of the wording of the notice of competition, the nature and functions of the Centre and the regulations of the Council which make applicable to the Centre the Protocol on the Privileges and Immunities and which refer any disputes between the Centre and its employees to the Court of Justice, it must be concluded that the staff of the Centre are employed by the European Communities.

14. Therefore the decision of the Selection Board for Competition No COM/LA/315 by which Mrs Alaimo was refused admission to that competition on the ground that she was not employed by the European Communities must be annulled.

15. As this was an open competition organized to constitute a reserve for recruitment, the rights of the applicant will be sufficiently protected if the Selection Board reconsiders its decision, without its being necessary to question the whole of the results of the competition or to annul appointments made in consequence thereof.

Costs

16. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions it must be ordered to pay the costs.

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

1 Annuls the decision of the Selection Board for Competition No COM/LA/315 of 7 November 1980 not to admit the applicant to the tests for the competition;

2 Orders the Commission to pay the costs.