1.

Is Article 152 of the Treaty to be interpreted as meaning that disputes between the Community and persons who, not being its servants, nevertheless claim to be such, fall within the jurisdiction of the Court of Justice?

2.

Must the service relationship between the Community and officials and servants be invariably based on an instrument of appointment, or may that instrument be replaced by a decision of a judicial authority that a specific service relationship exists de facto?

3.

Finally, if the answer to the previous question is in the affirmative, is the Court, under the rules and general principles of the Treaty establishing the European Atomic Energy Community and of the Staff Regulations of Officials and Servants of the Community, entitled, on the basis of recognition that a service relationship in fact exists, to establish a direct service relationship between the Community and persons who, though apparently employed by firms of contractors to the Community, work on the latter's premises and, according to what the plaintiffs in these proceedings have asserted and propose to prove, use materials supplied by the Community for their work and act under the direction of its officials? (In this connexion reference is made to a number of circumstances which might be taken into account in answering the third question. They are set out on pages 27 and 28 of the German version of the judgment making the reference.)

1.

On the first question:

According to what is to be read from the judgment making the reference, the first question is probably to be understood as meaning that an investigation should be made whether in disputes of this nature this Court has exclusive jurisdiction, which would mean that the national court has no jurisdiction. This relates only to the problem that certain persons employed at Ispra claim the status of officials or establishment staff. The legal position of local staff can therefore be disregarded; there is no doubt that national courts have jurisdiction to judge such cases under Article 81 of the Conditions of Employment of Other Servants and Articles 28 and 32 of Annex F of the said Agreement between the Italian Government and Euratom.

First it should be mentioned that, with regard to the delimitation of jurisdictions, Article 155 of the Euratom Treaty provides: ‘Save where jurisdiction is conferred on the Court of Justice by this Treaty, disputes to which the Community is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’. From this it follows that every time that jurisdiction is conferred on the European Court of Justice under provisions of Community law, the European Court has exclusive jurisdiction.

If the provisions of the Treaty are looked at in this light, then in the present case — the Commissioner making the reference has rightly recognized this — Article 152 of the Treaty must be considered first of all. Under Article 152 ‘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’. As regards disputes of the kind that are in question here reference should be made to the Staff Regulations in so far as the status of officials is in question and to the Conditions of

Employment in relation to the status of establishment staff. The relevant provision is Article 91 of the Staff Regulations, which, by reason of the reference in Article 97 of the Conditions of Employment, applies equally to officials and to establishment staff. It prescribes that the Court of Justice shall have jurisdiction ‘in any dispute between the Communities and any person to whom these Staff Regulations apply …’. If the wording of this provision is taken strictly, then it is possible to infer that the European Court of Justice has no jurisdiction in disputes of the present kind because they concern persons to whom the Staff Regulations and the Conditions of Employment do not yet apply, but who are only seeking to bring about that situation. In my view various considerations make it plain that such a conclusion would be quite untenable.

The Commission has rightly referred to the fact that it is a customary practice for international organizations to remove questions of employment of their staff from national courts. The underlying reason for this is the principle of immunity of such bodies with regard to their organic structure; it rules out the exercise by states which are members of such bodies of influence upon the internal structure of such organizations through their national judicial authorities. With regard to the examples cited by the Commission may I, for the sake of simplicity, refer to the statements in the document dated 6 November 1974 (pages 15 and 16 in the French version). Following on from this basic concept and the other equally important one, namely that such relationships under the law governing the public service require uniform judging by a central court, a wide interpretation of Article 91 of the Staff Regulations is certainly called for, so that all disputes relating to the public service of the Communities are covered by it including those which are concerned with the recognition of the status of official or that of establishment staff.

A further objection is that it would appear absurd to reserve to the Court of Justice all kinds of disputes over what are to some extent subordinate questions of the legal relationships between the Community as an employer and its officials or the staff of its nuclear establishments whilst at the same time denying it jurisdiction in disputes which go to the very existence of such legal relationships.

Finally the case-law has already shown that the Court of Justice has jurisdiction not only in disputes in which officials or former officials are parties, but also where the parties have not yet become officials and are taking part in competitions to become so. I refer for example to Case 23/64 (Judgment of 31 March 1965, Thérèse Vandevyvere v European Parliament, [1965] ECR 157).

Simply on the basis of Article 152 of the Euratom Treaty in conjunction with Article 91 of the Staff Regulations, I have accordingly no hesitation in acknowledging that the European Court of Justice has exclusive jurisdiction also in cases in which litigants are claiming the status of officials or established staff.

Further, however, relying on the case-law of the ‘pre-Staff Regulations’ time (for example in Joined Cases 43, 45 and 48/59, Judgment of 15 July 1960, Eva von Lachmüller and two others v Commission of the EEC, Rec. 1960, p. 933) recourse may be had to the general rules of jurisdiction in the Treaty and in particular to the third paragraph of Article 148. This provision prescribes the jurisdiction of the Court of Justice in so-called breach of duty actions against institutions of the Community, that is, in cases in which natural or legal persons complain that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion. On this point it is significant that the basis of the service relationship under Community law requires an act of appointment issued by the competent authority (cf. Article 1 of the Staff Regulations). It could be said that whoever wishes to become an official must bring an action for the issue of such an act as is referred to, inter alia in the third paragraph of Article 148.

Not quite the same applies to establishment staff whose legal relationship with the Community rests on a contract as appears from Article 84 of the Conditions of Employment. It is important however that even with regard to them their position approximates closely, by virtue of references in the Conditions of Employment (Articles 87, 91, 92 and 93) to the provisions of the Staff Regulations, to the status of officials. At least it must be taken that the contractual relationships relate to public law. Reference must be made in particular to Article 90 of the Conditions of Employment, in which it is stated:

‘A member of the establishment staff of the Joint Nuclear Research Centre shall serve a probationary period of from three to six months, during which his employment may be terminated if his work has not proved adequate … On expiry of the probationary period, a member of the establishment staff shall be established in his post.’

The definitive establishment of his legal relationship presupposes likewise an act by the competent authority and an act in respect of which the French and Italian versions of the Conditions of Employment significantly use the words ‘titulariser’ and ‘nominare’. This makes it appear arguable that the third paragraph of Article 148 may be considered to apply even in respect of persons who are seeking the status of establishment staff.

Thus however one interprets the Community rules which come into consideration in relation to the first question, one is forced to conclude without exception that the European Court of Justice has jurisdiction to decide upon the problems at issue, which excludes the possibility of there being any jurisdiction in the national court under Article 155 of the Euratom Treaty.

2.

On the second question:

The court making the reference then asks whether the service relationship between the Community and officials and servants must invariably be based on an instrument of appointment, or may it, instead, be replaced by a decision of a judicial authority that a specific service relationship exists de facto.

This can only mean, from the point of view of the court making the reference, whether in such cases a decision may be made by a national judicial authority.

In view of the answer to be given to the first question, that is, after the finding that national courts have no jurisdiction whatsoever in such cases, I would like to content myself with the conclusion that the second question is pointless and does not need to be considered.

3.

On the third question:

Finally the court making the reference seeks to know whether, on the basis of recognition that a service relationship in fact exists, the Court is entitled to establish a direct service relationship between the Community and persons who, though apparently employed by firms of contractors to the Community, work on the latter's premises and use materials supplied by the Community for their work and act under the direction of its officials.

If the third question is interpreted as asking whether the national court has such power, then what has been said on the second question applies. If on the other hand the question is taken literally, then it must be regarded as inadmissible as being irrelevant. The court is entitled to make such declarations in cases referred for a preliminary ruling, if — as is indicated in the judgment in Case 13/68 (Judgment of 19 December 1968, Salgoil v Italian Ministry for Foreign Trade, [1968] ECR 453) — it finds an obvious error on the part of the court making the reference. It is so in the present case, for all the national court can be concerned with is what powers it has in deciding the matter in dispute. How the Court of Justice would have to decide such a matter can certainly not be settled in proceedings for a preliminary ruling under Article 177, which are intended simply to give the national court assistance in reaching decisions; on this a declaration is only possible in the context of a direct action in a dispute between the Community and one of its servants, that is in an action which has been brought in accordance with the provisions of the Staff Regulations or of the third paragraph of Article 148.

4.

I accordingly propose that the questions raised by the Labour Commissioner at the Tribunale di Varese should be answered as follows:

The national court has no jurisdiction in disputes between the Community and persons who claim the status of officials or that of establishment staff. The European Court of Justice has exclusive jurisdiction to decide such questions.