Report for the Hearing delivered in Joined Cases 314 and 315/86

I — Legal background and facts

The applicants, who are officials of the Commission of the European Communities, were formerly special contract staff of the European Association for Cooperation (‘the EAC’), an international non-profit-making association set up under Belgian law which was accorded legal personality by Royal Decree of 15 September 1964 (Moniteur belge, 3.10.1964, p. 10536). In order to achieve its objective under its statutes, which was to facilitate the economic cooperation undertaken by the European Communities with the developing countries, the EAC employed three categories of staff, which it managed itself: headquarters staff, overseas staff and staff recruited by the EAC under a special contract (hereinafter referred to as ‘special contract staff’), under which they were seconded to Directorate-General VIII of the Commission (Development).

As a result of Council Regulation No 3245/81 of 26 October 1981 setting up a European Agency for Cooperation (Official Journal 1981, L 328, p. 1), the tasks of the EAC were entrusted to the European Agency. Article 14 of Regulation No 3245/81 provides that ‘the general terms of recruitment and of employment and the general system of remuneration, allowances and additional payments for the staff referred to in Article 3 (1) and for the staff of the Agency's headquarters shall be determined by specific provisions adopted by the Commission after the committee referred to in the second subparagraph of Article 12 (2) has delivered its opinion.’ Article 3 (1) refers to staff placed at the disposal of Commission delegations and to staff who are called upon to undertake technical assistance or cooperation tasks.

Considering that it was necessary to resolve the problems associated with the situation of the 56 staff of the headquarters of the EAC, the Council adopted Regulation No 3332/82 of 3 December 1982 laying down special transitional measures for the recruitment as officials of the European Communities of 56 members of the staff of the headquarters of the European Association for Cooperation (Official Journal 1982, L 352, p. 5). Article 1 of that regulation provides that a staff member occupying a post at the headquarters of the EAC on 1 January 1982 may be appointed a probationary official of the Commission. Article 3 provides that: ‘By way of derogation from Articles 31 and 32 of the Staff Regulations, officials recruited by virtue of this regulation shall be appointed to the appropriate grade and step indicated in the table of equivalence in the Annex’ to that regulation. Article 3 goes on to state that: ‘Seniority in grade shall be reckoned from the date of appointment as a probationer official. Seniority in step shall be that acquired by the said official in the service of the Association’.

In order to establish the 32 special contract staff of the EAC, the Commission applied the ordinary law of the European public service, that is to say the Staff Regulations of Officials of the European Communities. Ail the special contract staff received letters of dismissal from the EAC and, at the same time, the Commission offered them contracts as members of its temporary staff.

On 16 July 1981 a vacancy notice for 32 new permanent posts granted to the Commission by the Budgetary Authority in the 1981 Budget was published and the Commission proceeded to organize internal competitions in which the great majority of the persons concerned, including the applicants, were successful.

As a result, in June 1981 the applicants were offered, and accepted, contracts engaging them as members of the temporary staff. When their contracts expired they were appointed as probationary officials. As far as the applicants were concerned, that application of the Staff Regulations had the following outcome:

i) Mr de Szy-Tarisse, who had entered the service of the EAC on 18 February 1975 and at the time of his dismissal was classified in Grade A 5, Step 7, was appointed to Grade A 5, Step 3, by decision of 30 June 1982;

ii) Mrs Feyaerts, who had entered the service of the EAC on 1 April 1972 and at the time of her dismissal was classified in Grade 33, Step 6, corresponding to Grade C 3, Step 6, was appointed to Grade C 4, Step 3 by decision of 8 July 1982.

By applications lodged at the Court Registry on 27 April and 11 July 1983, a number of officials of the Commission of the European Communities, including the applicants, who had formerly been special contract staff brought an action essentially for a declaration that they had been employed by the Commission since the date on which they entered into their contracts of employment with the EAC and for the annulment of the decisions appointing them as probationary officials but only in so far as those decisions determined their grade and step.

The Court of Justice adjudicated upon those applications in its judgment of 11 July 1985 (Joined Cases 66 to 68 and 136 to 140/83 Hattet and Others v Commission [1985] ECR 2459). It annulled the Commission's decisions of 30 June, and 8 and 14 July 1982 appointing the persons concerned probationary officials ‘in so far as they determined the applicants' grade and step’. The remainder of the applications was dismissed and the cases were remitted to the Commission for new decisions.

By decision of 3 February 1986 the Commission, considering that it had taken the necessary measures in accordance with Article 176 of the EEC Treaty to comply with that judgment, proceeded to reclassify the applicants with effect from the date of their appointment as probationary officials.

Pursuant to that decision of 3 February 1986 Mr de Szy-Tarisse was appointed, by decision of 20 February 1986 replacing the decision of 14 July 1982, as a probationary official of the European Communities with effect from 1 July 1982 to a post of principal administrator in Grade A 5, Step 7, with additional seniority in step as from 1 February 1981.

Also pursuant to the decision of 3 February 1986, Mrs Feyaerts was appointed, by decision of 10 February 1986 replacing the decision of 8 July 1982, as a probationary official of the European Communities with effect from 1 July 1982 to a post of typist in Grade C 3, Step 7, with seniority in step as from 1 April 1982.

Concurrently with their salary for April 1986 the Commission paid the applicants the additional remuneration ensuing from the decision of 3 February 1986.

II — Written procedure

By memoranda of 12 and 6 May 1986 respectively, Mr de Szy-Tarisse and Mrs Feyaerts lodged complaints pursuant to Article 90 (2) of the Staff Regulations against the measures taken in their regard in order to comply with the judgment of 11 July 1985.

The appointing authority rejected those complaints on 19 September 1986. The actions brought by the applicants are directed against the decisions rejecting their complaints.

The written procedure followed its normal course. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber) decided to open the oral procedure without a preparatory inquiry.

The Court (Third Chamber) ordered Cases 314 and 315/86 to be joined by order of 1 April 1987.

III — Conclusions of the parties

Each of the applicants claims that the Court should:

1) declare and adjudge that the defendant should rectify the applicant's situation, applying the measures necessary to comply with the judgment of 11 July 1985 as from the date on which the applicant was recruited as a member of the temporary staff;

2) take formal note that the applicant provisionally estimates the amounts due at BFR 1000000, an estimate which the applicant reserves the right to increase or reduce;

3) take formal note that the applicant claims default interest on the amounts awarded;

4) order the defendant to pay the applicant default interest due on the amounts already paid in partial compliance with the judgment of 11 July 1985;

5) declare and adjudge that the defendant should rectify the applicant's administrative and financial situation, taking account of the statements contained in paragraph 30, in fine, of the judgment of 11 July 1985;

6) order the defendant to pay the applicant forthwith the sum of BFR 100000 in respect of the nonmaterial damage resulting from its failure to comply with the judgment in that regard;

7) take formal note that the applicant reserves the right to claim the arrears, which the applicant provisionally estimates at BFR 1000000, at a later date;

8) take formal note that the applicant claims default interest on those amounts;

9) order the defendant to pay the costs.

The defendant claims that the Court should:

i) dismiss the application;

ii) make an appropriate order as to costs.

IV — Summary of the submissions and arguments of the parties put forward during the written procedure

A — Admissibility

The Commission raises an objection of admissibility to the applicants' claim for damages for the alleged setback to their careers on the ground that such a claim was not set out in Cases 68 and 138/83 which were the subject of the judgment of 11 July 1985. It observes that that is the very reason why the judgment of 11 July 1985 is silent on that point, since the Court could not have ordered the Commission to pay such compensation without making a ruling ultra petita.

The applicants argue that such a claim was not necessary since in their previous actions they had made no claim for the award of sums, apart from costs, which had not prevented the Commission from paying them the additional remuneration to which they were entitled as a result of their new classification.

B — The substance

The applicants refer so far as necessary to the arguments which they set out in Cases 68 and 138/83.

It appears from their submissions in these actions that the applicants are asking the Court for a declaration to the following effect :

1) their new classification should take effect from the date of their appointment as members of the temporary staff and not from the date of their appointment as probationary officials;

2) by virtue of Articles 5, 31 and 32 of the Staff Regulations and Commission Decision 61/IX/81 their new classification should be in grades and steps higher than those they had at the time when they were dismissed by the EAC;

3) in the event that the Court upholds their claims under (1) and (2), the applicants should be paid the additional remuneration due to them;

4) default interest should be paid both on the additional remuneration already paid by the Commission following the classification made pursuant to the judgment of 11 July 1985 and on the sums which will be due should the Court accept their claims under (1) and (2);

5) the applicants should be paid damages for the nonmaterial damage ensuing from the partial failure to comply with the judgment of 11 July 1985, damages which the Court is to assess ex aequo et bono; the applicants evaluate those damages at BFR 100000, plus default interest.

The arguments which the parties have put forward with regard to each of those claims must be examined in turn.

1. As regards their claim that they should be reclassified as from the date of their appointment as members of the temporary staff, the applicants consider that they should not suffer the unfavourable consequences resulting from the application of a procedure different from that used to appoint former EAC headquarters staff. They adopt the argument of the applicants in Case 286/83 (Alexis, proceedings suspended) and Case 161/86 (Jaeger, proceedings suspended) to the effect that the EAC was a veil behind which the Commission acted, without its being necessary to argue that its personality as a third party in whose name the Commission acted was necessarily fictitious. They argue that, as a result, there was no reason for applying different rules to headquarters staff, on the one hand, and special contract staff, on the other; whilst the problem of the headquarters staff was resolved by means of Council Regulation No 3332/82, which was adopted at the initiative of the Commission, the Commission developed a complex, if not intricate, system for engaging the special contract staff which involved interlinking stages, namely dismissal, followed by employment as a member of the temporary staff, and finally a competition, with all the uncertainty which that entailed. The applicants maintain that a formula identical or similar to that provided for in Regulation No 3332/82 should have been applied to the special contract staff; it would have enabled them to be established directly without any other formality than the probation period, or, on the assumption that the application of two different methods was lawful, the methods should have produced the same results and not led to discriminatory treatment, which caused the special contract staff to suffer an unfavourable hiatus in their careers. They observe that, in any event, in its judgment of 11 July 1985 and in particular in paragraph 24 thereof, the Court considered that a system which failed to take account of the fact that there was no essential difference between the factual and legal situation of the EAC's headquarters staff and that of its special contract staff constituted a breach of the principle of equal treatment laid down in Article 5 (3) of the Staff Regulations. It was therefore contrary to that principle of equal treatment for the applicants to have been reclassified with effect from a date subsequent to the date of their dismissal and their engagement as members of the temporary staff. As for the Commission's argument that they had not lodged a complaint or brought proceedings before the Court against their engagement as members of the temporary staff, the applicants argue that it would have been inconceivable for them to have contested their engagement as members of the temporary staff, which went hand-in-hand with their dismissal from the EAC, since that would have resulted in their being unemployed. Furthermore, given that their employment as members of the temporary staff was merely a step in a procedure which would result in their recruitment by competition, it was unnecessary to contest each one of the isolated acts, it being sufficient to challenge the final act, which they did. The Commission observed that the idea that the EAC was a mere representative of the Commission and the applicants' arguments thereon in another context had already been discussed in connection with Joined Cases 66 to 68 and 136 to 140/83. Without denying that the different ways in which the Commission had recruited EAC staff had sometimes had different consequences, the Commission stated that it had explained the ‘historical’ reasons for its decision; it had made it clear, in particular in its reply to the questions put by the Court in those cases and in Case 119/83 (judgment of 11 July 1985 in Appelbaum [1985] ECR 2447) that in the absence of a Council regulation laying down identical provisions to those adopted with respect to members of the headquarters staff of the EAC, it could not take such measures derogating from the ordinary law of the European public service in respect of the special contract staff. In view of the fact that the Court annulled the decisions appointing the former special contract staff only in so far as those decisions determined their grade and step, the Commission considers that it properly implemented the judgment of 11 July 1985 by reclassifying the applicants, pursuant to Articles 31 and 32 of the Staff Regulations and Decision 61/IX/81 applying those articles, in grades or steps no less favourable than their grading when they were employed at the EAC. It points out that the Court did not state in its judgment of 11 July 1985 that the Commission was under an obligation to apply to the special contract staff provisions identical or similar to those of Council Regulation No 3332/82, or that those staff should have been directly appointed probationary officials of the Commission. On the contrary, the Court stated, in particular in paragraph 23 of that judgment, that ‘when the Commission appointed the EAC's special contract staff it was recruiting staff from outside the institutions. The fact that the relevant provisions of the Staff Regulations were applied involved no irregularity’. In the event, when the applicants were reclassified, Article 8 of Decision 61/IX/81, the aim of which is precisely to take into acount at the time of recruitment any seniority in step obtained as a member of the temporary staff, was applied in their case. Accordingly, Mrs Feyaerts was classified in Grade C 3, Step 7, rather than in Step 6, and Mr de Sry-Tarisse was granted seniority in step going back to 1 February 1981. The Commission maintains that it would therefore be excessive to claim that those gradings, which were carried out in accordance with Decision 61/IX/81 and which were in no case inferior to the gradings which would have resulted from an analogous application of Regulation No 3332/82, caused an ‘incomprehensible and in all respects inequitable hiatus’ on account of the time-lag corresponding to the period during which the applicants were members of the temporary staff. Lastly, the Commission argues that although it was unnecessary for the applicants to have lodged a prior complaint, or — a fortiori — brought an action before the Court, against their employment as members of the temporary staff in order to contest their appointment as officials or as probationary officials since each of those measures was a separate act for the purposes of Article 90 of the Staff Regulations, as the Court pointed out in its judgment of 11 July 1985, their engagement as members of the temporary staff can no longer be anulled and it is no longer possible to reconsider the gradings which they were given as members of the temporary staff.

2. As regards the applicants' claim to be reclassified in grades and steps higher than those they had at the time when they were dismissed by the EAC, the applicants consider that that claim is perfectly consistent with paragraph 30 of the judgment of 11 July 1985; in so far as the Court decided that it was for the Commission to reach a decision on the applicants' grading, it did not rule out the possibility that the applicants might be given a grading which did not simply reflect the application of the table of equivalence annexed to Regulation No 3332/82. In Case 314/86, Mr de Szy-Tarisse claims that at the time of his dismissal by the EAC he had 19 years' experience and was entitled to additional seniority under Decision 61/IX/81. In view of that additional seniority, the Commission should have classified him in Grade A 4. He asked the Commission to produce the personal files of H. Carle, P. Peligry, G. Hild and Mrs Birindelli, who are all Commission officiais and former special contract staff and who, according to the applicant, were appointed in Grade A 4 although they had the same or less experience than he when they were dismissed by the EAC. In Case 315/86, Mrs Feyaerts maintains that the Commission took no account of the length of her experience, of the age bracket or of her capabilities, as it should have done in accordance with Decision 61/IX/81. She considers that the Commission should have classified her in Grade C 2. In addition, she considers that she should have been promoted as from 1 July 1984, the date on which she reached the last step in Grade C 3; she points out that in 1987, that is to say 15 years following her employment by the EAC, she has still not been promoted despite her excellent reports. The Commission considers in the first place that the applicants' claim to be classified in grades and steps higher than those they had at the time of their dismissal by the EAC is at odds with their other complaint to the effect that provisions identical or similar to those of Council Regulation No 3332/82 and the table of equivalence annexed thereto were not applied to the special contract staff. That claim is also unfounded, since when they were initially classified the applicants had already been granted, under Article 5 of Decision 61/IX/81, additional seniority in step by way of derogation from Article 1 of that decision, which provides that the appointing authority is to appoint any candidate selected as a probationary official in the starting grade of the lowest career bracket of his category or service. The Commission argues that whilst under Article 3 of Decision 61/IX/81 the appointing authority may, by way of derogation from Article 1 of that decision, appoint the candidate selected as a probationary official to the upper grade of the starting or intermediate career bracket, provided that he produces evidence of experience within the meaning of Article 2, it nevertheless remains the case that the appointing authority is not obliged to apply that provision. The Commission maintains that it properly implemented the judgment of 11 July 1985 by increasing the applicants' classification in step so as to give them the same classification in step as they had when they were in the employment of the EAC. For the purposes of effecting that classification, the appointing authority had a wide discretion in assessing the applicants' experience, as the Court has recognized in a line of cases, in particular in its judgments of 1 December 1983 in Case 190/82 (Blomefield [1983] ECR 3981) and 12 July 1984 in Case 17/83 (Angelidis [1984] ECR 2907). In Case 314/86 (Mr de Szy-Tarisse), the Commission points out, with a view to refuting the applicant's submission, that in paragraph 8 of its judgment of 21 January 1987 in Case 219/84 (Powell [1987] ECR 339), the Court stated that the tenor of Article 3 of Decision 61/IX/81 ‘must be construed as an exception to the general classification rules, and as a decision which in any event lies within the discretionary power of the administration’. The Commission produced the personal files of the former special contract staff mentioned by the applicant and observes that their situation with regard to experience was more favourable than that claimed by Mr de Szy-Tarisse. Moreover, it points out that when the latter was appointed as a probationary official he had 15 years' experience, including eight years with the EAC. In Case 315/86 (Mrs Feyaerts), the Commission observes, in order to refute the applicant's argument, that Article 3 of Decision 61/IX/81, the last paragraph of which provides that ‘since the upper grades in the career brackets B 3/B 2, C 3/C 2 and D 3/D 2 are reserved for promotions within the career bracket, there can be no appointments in those grades’, was regarded by the Court in its judgment of 6 June 1985 in Case 146/84 (De Santis [1985] ECR 1723) as being a perfectly lawful provision. In the event, the Commission considers that neither the applicant's qualifications nor the requirements of the service with regard to the post were such as to justify her being appointed to the upper grade in career bracket C 3/C 2.

3. As regards the claims for the payment of additional remuneration and default interest, the applicants maintain that their salary decreased after August 1981 and it was not until April 1987 that the Commission, in partially complying with the judgment of 11 July 1985, paid them only the extra remuneration resulting from their reclassification as from the date of their appointment as probationary officials. They base their claim for the payment of default interest on the argument that the fact that the Commission waited until 6 February 1986, that is to say six-and-a-half months after the delivery of the relevant judgment, before reclassifying them constitutes an unjustified delay and that that delay itself is a consequence of the error initially made by the Commission. They therefore consider that all the requirements set out in paragraph 23 of the Court's judgment of 30 September 1986 in Case 264/83 (Delhez [1986] ECR 2749) are satisfied in so far as the Court considered that ‘a ... question which could arise is whether an obligation to pay default interest should be recognized where there was an unjustified delay in actually determining the amount of the remuneration owed’. As for the Commission's statement to the effect that the amount owed in this case did not become certain or ascertainable until 6 February 1986, the date on which the Commission decided to reclassify the former special contract staff, that statement is tantamount to completely ignoring the damage which the applicants sustained between 1981 and 1987. They maintain that the starting date for the calculation of the interest should be the date on which they were dismissed by the EAC and engaged as members of the temporary staff by the Commission. However, assuming that the only period to be taken into account was that between 11 July 1985, the date on which the judgment was delivered, and 6 February 1986, interest would also be payable on the arrears of their remuneration and allowances for that period. The Commission considers that the applicants wrongly maintain, on the basis of paragraph 23 of the judgment in Delhez that there was an unjustified delay in its complying with the judgment of 11 July 1985. It merely observes that that judgment was delivered at the beginning of the 1985 summer vacation and that the measures necessary to comply with it were adopted on 6 February 1986. As for the claim that that delay was itself the consequence of the error initially committed by the Commission, that claim is unrealistic in so far as the error was excusable. The Commission points out that in its judgment of 11 July 1985 the Court, mindful of the wide discretion enjoyed by the appointing authority in the matter, had left it to the appointing authority to reconsider the applicants' position with a view to their reclassification by applying the criteria laid down in the relevant provisions of the Staff Regulations and Decision 61/IX/81. In the event, having due regard to the judgment of 30 September 1986 in Délhez, it was only as from 6 February 1986 — the date on which the Commission decided on the reclassification of the former special contract staff — that the principal sum owed became certain or ascertainable.

4. As regards the claim for the payment of damages for nonmaterial damage, the applicants base their claim on the fact that following the judgment of 11 July 1985 the Commission merely reclassified them mechanically in the situation created by their dismissal and engagement as members of the temporary staff, without taking any account of Decision 61/IX/81. They consider that their estimate of that damage at BFR 100000 is by no means excessive. The Commission considers that if by some remote chance the claim for reclassification should be considered well founded, the damage suffered by the applicants would be sufficiently compensated by the award of a new classification and by the payment of the corresponding additional remuneration.

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the Case: French.