61981J0016

OFFICIALS - RECRUITMENT - COMPETITION - CONDITIONS FOR ADMISSION - EXTENSION OF THE AGE-LIMIT FOR EXISTING EMPLOYEES - EMPLOYMENT - CONCEPT - EMPLOYEES OF THE EUROPEAN CENTRE FOR THE DEVELOPMENT OF VOCATIONAL TRAINING - NATURE AND FUNCTIONS OF THE CENTRE - EMPLOYEES OF THE CENTRE ARE EMPLOYEES OF THE EUROPEAN COMMUNITIES

( STAFF REGULATIONS OF OFFICIALS , ANNEX III , ART . 1 ( 1 ); COUNCIL REGULATIONS NOS 337/75 AND 1859/76 )

THE EXPRESSION ' ' SERVANTS ' ' APPEARING IN ARTICLE 1 ( 1 ) OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS MUST , FOR THE PURPOSES OF THAT PROVISION , BE CONSTRUED AS INCLUDING ALL EMPLOYEES OF THE EUROPEAN COMMUNITIES .

IN VIEW OF THE NATURE AND FUNCTIONS OF THE EUROPEAN CENTRE FOR THE DEVELOPMENT OF VOCATIONAL TRAINING AND COUNCIL REGULATIONS NOS 337/75 AND 1859/76 , RESPECTIVELY ESTABLISHING THE CENTRE AND LAYING DOWN THE CONDITIONS OF EMPLOYMENT APPLICABLE TO ITS STAFF , WHICH MAKE APPLICABLE TO THE CENTRE THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES AND WHICH ASSIGN 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 .

IN CASE 16/81

AGATA ALAIMO , AN OFFICIAL OF THE EUROPEAN CENTRE FOR THE DEVELOPMENT OF VOCATIONAL TRAINING , RESIDING AT 2 KOMMANDANTENSTRASSE , WEST BERLIN , REPRESENTED BY E . LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF R . BIEVER , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , J.-P . DELAHOUSSE , ACTING AS AGENT , ASSISTED BY R . ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION 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 ,

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 ABOVE-MENTIONED 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 ABOVE-MENTIONED 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 ; ARTICLES 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 PART 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 PART IN PERFORMING THOSE TASKS . BY STATING THAT THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES WAS TO APPLY 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 PART 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 .