61987J0249

++++

Officials - Staff Regulations - Conditions of Employment of Other Servants - Scope - Language teachers - Contracts governed by the law of a Member State - Whether permitted

( Staff Regulations; Conditions of Employment of Other Servants )

The Staff Regulations of Officials and the Conditions of Employment of Other Servants do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than within the framework of those rules . On the contrary, the Commission' s powers to conclude contracts governed by the law of a Member State extends to contracts of employment or contracts for the provision of services .

Such contracts will, however, be unlawful if the Community determines the terms of employment not in the light of the needs of the service, but with a view to avoiding the application of the Staff Regulations or the Conditions of Employment of Other Servants .

That is not the case in regard to the recruitment of language teachers on the basis of contracts for an indefinite period governed by the law of a Member State . Although linguistic training for the staff is undoubtedly important for the proper functioning of the institutions of a multilingual Community, it does not constitute one of the functions which the Treaties assign to the institutions . In those circumstances, it must be accepted that the Commission has a discretion as to the most appropriate means of meeting a need of that kind in the light of the interests of the service .

In Case C-249/87

Françoise Mulfinger and Others, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, 11 boulevard Royal,

applicant,

v

Commission of the European Communities, represented by Marie Wolfcarius, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the Office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the administration' s decision to present the applicants with a standard-form contract for language teachers,

THE COURT

composed of : O . Due, President, Sir Gordon Slynn and F . A . Schockweiler ( Presidents of Chambers ), G . F . Mancini, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and F . Grévisse, Judges,

Advocate General : F . G . Jacobs

Registrar : B . Pastor, Administrator, acting for the Registrar

having regard to the Report for the Hearing, as amended, following the hearing on 4 July 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 17 October 1989,

gives the following

Judgment

1 By an application lodged at the Court Registry on 19 August 1987, Françoise Mulfinger and six other language teachers brought an action for the annulment of the Commission' s decision to present them, in November 1986, with a standard-form contract for language teachers .

2 The applicants have been teaching languages for a number of years to officials of the Commission of the European Communities . They give both general and special courses adapted to the specific needs of the Commission' s departments . Their duties consist, in particular, of organizing those courses, preparing teaching materials suited to the specific needs of Community officials and giving the courses . They also perform other duties, such as the preparation of tests for admission to courses and the marking of examinations . The teachers are employed under contracts governed by Belgian law .

3 In 1986, the defendant presented the applicants with a standard-form contract for an indefinite period providing for 33 weeks of teaching per academic year on the basis of 15 hours per week . Teaching was to be carried out in accordance with the instructions of the Head of the Staff Training Division . Article 5(2 ) of the contract provides that : "In the light of the nature of the duties to which contract relates, the contracting party may not be regarded as a servant of the Commission ".

4 The applicants consider that the Commission should have employed them either under the Staff Regulations of Officials of the European Communities ( hereinafter referred to as "the Staff Regulations ") or under the Conditions of Employment of Other Servants of the European Communities ( hereinafter referred to as "the Conditions ").

5 Reference is made to the Report for the Hearing for a fuller account of the background to the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

6 In support of their application, the applicants rely on four submissions : infringement of Article 212 of the EEC Treaty or Title I of the Conditions or both; misuse of procedure by the administration; infringement of the principle of the protection of legitimate expectations and failure by the administration to fulfil its duty to have regard to the interests of its officials and other staff . The first two submissions are related and should be considered together .

First and second submissions

7 The applicants argue that the Community institutions cannot employ staff for the performance of duties meeting permanent needs other than under the Staff Regulations or the Conditions . They consider that, by subjecting language teachers who must assume duties of a permanent nature to a contract of employment for an indefinite period governed by Belgian law, the Commission' s purpose was to avoid the application of the Staff Regulations and the Conditions and thus committed a misuse of procedure .

8 In support of their case, the applicants rely on several provisions : the former Article 212 of the EEC Treaty, Article 24 of the Merger Treaty, Article 214 of the EEC Treaty concerning the obligation of professional secrecy of Community staff, the third subparagraph of Article 215 concerning the personal liability of Community staff and Article 12 et seq . of the Protocol on the Privileges and Immunities of the European Communities .

9 It should be pointed out first of all that, although it is true that those provisions mention only officials and other servants, to which they relate, it cannot therefore be concluded that staff other than those referred to might not be bound by them .

10 Secondly, according to the Court' s case-law ( in particular, the judgments of 1 July 1982 in Case 109/81 Porta v Commission (( 1982 )) ECR 2469, of 20 June 1985 in Case 123/84 Klein v Commission (( 1985 )) ECR 1907, of 11 July 1985 in Case 43/84 Maag v Commission (( 1985 )) ECR 2581 and of 11 July 1985 in Case 111/84 Institut national d' assurances sociales pour travailleurs indépendants v Cantisani (( 1985 )) ECR 2671 ), the Staff Regulations and the Conditions, adopted by the Council under the first subparagraph of Article 24(1 ) of the Merger Treaty, do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than within the framework of those rules . On the contrary, the Commission' s powers under Articles 211 and 181 of the EEC Treaty, Articles 6 and 42 of the ECSC Treaty and Articles 153 and 185 of the EAEC Treaty to conclude contracts governed by the law of a Member State extends to contracts of employment or contracts for the provision of services .

11 Such contracts will, however, be unlawful if the Community determines the terms of employment not in the light of the needs of the service, but with a view to avoiding the application of the Staff Regulations or the Conditions or both ( see the judgment of 20 June 1985 in Klein, cited above ).

12 In this case, it should be noted that the applicants were engaged on the basis of contracts for an indefinite period and that the duties they perform do not therefore meet needs which are purely temporary in nature .

13 The applicants conclude that the Commission was obliged to employ them under staff regulations . That argument cannot be accepted .

14 Although linguistic training for the staff is undoubtedly important for the proper functioning of the institutions of a multilingual Community, it does not constitute one of the functions which the Treaties assign to the institutions . In those circumstances, it must be accepted that the Commission has a discretion as to the most appropriate means of meeting a need of that kind in the light of the interests of the service . The Commission could, for example, have recourse to an outside company in order to provide language teaching for its staff .

15 It does not appear, however, that the contested decision exceeded the limits of that discretion . The facts advanced by the applicants are not of such a nature as to prove that the Commission determined their terms of employment, not in the light of the interests of the service, but with a view to avoiding the application of the Staff Regulations or the Conditions . Moreover, nothing in the file shows any manifest error in the assessment of the interests of the service and of the way in which they were met .

16 It follows that the first two submissions must be rejected .

Third submission

17 In their third submission, alleging an infringement of the principle of the protection of legitimate expectations, the applicants claim essentially that as a result of the long process of consultation with the trade unions intended to find a satisfactory solution to the problem of the employment of language teachers, they were entitled to be granted terms of employment governed by the Staff Regulations or the Conditions .

18 In this regard, it is sufficient to point out, first, that the fact of entering into negotiations is no guarantee that they will succeed and, secondly, that it does not appear that in this case the Commission committed itself during the negotiations to offer language teachers employment under the Staff Regulations or the Conditions . Consequently, the submission must be rejected .

Fourth submission

19 In their fourth submission, the applicants claim that the Commission failed to fulfil its duty to have regard to the interests of its staff by imposing on language teachers conditions which did not permit them to perform permanent, daily duties or to ensure that the quality and permanence essential for all language teaching would be present .

20 In making this submission, the applicants are contesting the Commission' s assessment as to the best way of meeting the needs of its staff in regard to language teaching . However, as stated above in connection with the first and second submissions, it does not appear that the Commission exceeded the limits of its discretion in that domain . Consequently, the submission must be rejected .

21 Since none of the applicants' submissions has been accepted, the application must be dismissed in its entirety .

Costs

22 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities . That rule should be applied to the applicants inasmuch as their application was intended to obtain recognition of their right to be regarded as servants of the Communities .

On those grounds,

THE COURT

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .