61981J0109

JURISDICTION OF THE COURT - ARBITRATION CLAUSE - CONTRACTUAL RELATIONSHIP BASED ON SUCCESSIVE CONTRACTS - REPLACEMENT OF AN ORAL CONTRACT BY ANNUAL WRITTEN CONTRACTS - ABSENCE OF ANY ARBITRATION CLAUSE IN THE FIRST WRITTEN CONTRACTS - ARBITRATION CLAUSE INCLUDED IN EACH OF THE CONTRACTS SIGNED SUBSEQUENTLY - CONSIDERATION BY THE COURT OF ALL THE CONTRACTS SUCCESSIVELY ENTERED INTO

( ECSC TREATY , ART . 42 ; EEC TREATY , ART . 181 ; EAEC TREATY , ART . 153 )

IN SO FAR AS THE JURISDICTION OF THE COURT OF JUSTICE IS BASED ON AN ARBITRATION CLAUSE CONTAINED IN EACH OF THE ANNUAL CONTRACTS SIGNED AS FROM A PARTICULAR YEAR , THE FACT THAT THE SAME CLAUSE DOES NOT APPEAR IN THE PREVIOUS CONTRACTS AND THAT , AS REGARDS THE FIRST YEARS OF THE RELATIONSHIP , THERE WERE NOT EVEN ANY WRITTEN CONTRACTS IS NO OBSTACLE TO THE COURT ' S HAVING REGARD , IN ITS ASSESSMENT OF THE RELATIONS BETWEEN THE PARTIES , TO ALL THE CONTRACTS SUCCESSIVELY ENTERED INTO .

IN CASE 109/81

TERESITA PACE , NEE PORTA , OF 2 VIA CADORNA , ISPRA , VARESE , REPRESENTED BY ANGELO VOLPI AND GIUSEPPE CELONA OF THE MILAN BAR , WITH THE RIGHT OF AUDIENCE BEFORE THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE , 20 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY SERGIO FABRO AND ORESTE MONTALTO , MEMBERS OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF THE LATTER , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS ,

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 6 MAY 1981 , MRS TERESITA PACE , NEE PORTA , A TEACHER AT THE TECHNICAL AND VOCATIONAL TRAINING SCHOOL OF THE ISPRA JOINT RESEARCH CENTRE ( HEREINAFTER REFERRED TO AS ' ' THE CENTRE ' ' ), BROUGHT AN ACTION FOR AN ORDER THAT THE COMMISSION SHOULD ACCORD HER ECONOMIC AND LEGAL TREATMENT EQUIVALENT TO THAT LAID DOWN IN THE COLLECTIVE LABOUR AGREEMENT IN FORCE IN ITALY FOR STAFF IN THE PRIVATE TEACHING SECTOR AND ALSO GRANT HER , UPON TERMINATION OF HER EMPLOYMENT , THE RETIREMENT PENSION PROVIDED FOR EMPLOYEES OF THE COMMUNITY .

2 DURING THE ACADEMIC YEARS 1963/64 TO 1979/80 , THE APPLICANT WAS ASKED BY THE DIRECTOR OF THE CENTRE TO GIVE COURSES IN GENERAL STUDIES AND ITALIAN AT THE ABOVE-MENTIONED SCHOOL . FOR THE FIRST FIVE YEARS OF THE EMPLOYMENT RELATIONSHIP THERE WAS NO WRITTEN CONTRACT BUT SUBSEQUENTLY , FROM 1969 TO 1975 , THE DIRECTOR OF THE CENTRE SPECIFIED EACH YEAR , IN A LETTER-CONTRACT , BOTH THE DURATION OF THE TEACHING , BEING THE FULL ACADEMIC YEAR , AND THE REMUNERATION , WHICH WAS ALLOCATED ON AN HOURLY BASIS .

3 AS FROM THE ACADEMIC YEAR 1976/77 , THE RELATIONSHIP BETWEEN THE CENTRE AND THE APPLICANT WAS BASED ON A MORE DETAILED CONTRACT , SIGNED BY BOTH PARTIES , WHICH DEFINED IT AS A CONTRACT FOR ' ' PRESTAZIONI D ' OPERA ' ' ( PROVISION OF SERVICES ). THE CONTRACT STIPULATES THAT THE TEACHING MUST BE PROVIDED ' ' IN ACCORDANCE WITH THE EDUCATIONAL OBJECTIVE TO BE ATTAINED AS INDICATED IN THE PROGRAMME OF VOCATIONAL TRAINING COURSES ' ' . CLAUSE 6 PROVIDES THAT THE CONTRACT IS TO BE ' ' GOVERNED BY ITALIAN LAW ' ' . THE NEXT CLAUSE STATES THAT THE TEACHER HAS BEEN ' ' INFORMED THAT IT IS EXCLUSIVELY THE TEACHER ' S RESPONSIBILITY TO REGULARIZE HIS OR HER POSITION REGARDING ITALIAN TAX AND SOCIAL-SECURITY LEGISLATION , THE INSTITUTION HAVING NO OBLIGATION IN THAT RESPECT IN VIEW OF THE NATURE OF THE PRESENT CONTRACT ' ' .

4 IN THE CONTRACTS THE PARTIES DECLARED , PURSUANT TO ARTICLE 42 OF THE ECSC TREATY , ARTICLE 181 OF THE EEC TREATY AND ARTICLE 153 OF THE EAEC TREATY , THAT THE COURT OF JUSTICE WAS TO ' ' HAVE SOLE JURISDICTION TO SETTLE ALL DISPUTES RELATING TO THE VALIDITY , INTERPRETATION OR PERFORMANCE ' ' OF THE SAID CONTRACTS .

5 THE APPLICANT CLAIMS IN HER APPLICATION THAT UNDER ITALIAN LAW , WHICH IS APPLICABLE TO THIS CASE , THE EMPLOYMENT RELATIONSHIP BETWEEN HER AND THE CENTRE MUST BE REGARDED AS RELATING TO THE UNINTERRUPTED PROVISION OF WORK AS AN EMPLOYEE FOR AN INDEFINITE PERIOD AND CLAIMS IN CONSEQUENCE THAT SHE SHOULD BE ACCORDED THE SAME TREATMENT AS PRIVATE TEACHERS AND , IN PARTICULAR , SHE CLAIMS ENTITLEMENT TO PAY DURING THE SUMMER MONTHS WHEN THE SCHOOOL IS CLOSED , PAYMENT OF INSURANCE AND SOCIAL-SECURITY CONTRIBUTIONS , THE COST-OF-LIVING ALLOWANCE , PERIODICAL SENIORITY RISES , THE 13TH MONTHLY PAYMENT , A RETIREMENT PENSION UPON CEASING WORK DEFINITIVELY , AND ALL OTHER ECONOMIC AND LEGAL ADVANTAGES PROVIDED FOR IN THE NATIONAL COLLECTIVE LABOUR AGREEMENT OF 11 SEPTEMBER 1978 RELATING TO MANAGEMENT STAFF AND TEACHING STAFF IN SCHOOLS MANAGED BY INSTITUTIONS , PRIVATE INDIVIDUALS OR LEGAL PERSONS .

6 SHE ALSO CLAIMS THAT HER ENTITLEMENT TO MEMBERSHIP OF A PENSION SCHEME SHOULD BE RECOGNIZED . IN THAT RESPECT , SHE HAD INITIALLY REQUESTED IN HER APPLICATION THAT THE CONDITIONS LAID DOWN FOR STAFF IN THE SERVICE OF THE COMMUNITIES SHOULD BE APPLIED TO HER . AT THE HEARING , SHE STATED THAT FOR THAT PURPOSE SHE DOES NOT SEEK TO BE INCLUDED IN THE LIST OF POSTS OF THE STAFF OF THE COMMISSION BUT SIMPLY THAT SHE BE GRANTED , IN ONE WAY OR ANOTHER , THE SAME PENSION AS THAT WHICH SHE WOULD HAVE RECEIVED IF HER INSURANCE CONTRIBUTIONS HAD BEEN PAID BY THE CENTRE , AS IS REQUIRED BY ITALIAN LAW .

ADMISSIBILITY

7 IN ITS DEFENCE , THE COMMISSION OBJECTED THAT THE APPLICATION WAS INADMISSIBLE AS BEING FOUNDED ON ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS UPON WHICH THE APPLICANT IS NOT ENTITLED TO RELY .

8 IN HER REPLY , THE APPLICANT MAINTAINED THAT , HAVING WORKED AS AN EMPLOYEE IN THE SERVICE OF THE COMMUNITY , SHE WAS ENTITLED TO RELY ON THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , ARTICLE 46 OF WHICH RENDERS APPLICABLE BY ANALOGY THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING APPEALS .

9 HOWEVER , AT THE HEARING , THE APPLICANT STATED THAT SHE DID NOT SEEK TO BE CONSIDERED AS AN EMPLOYEE OF THE COMMUNITY AND THAT HER APPLICATION WAS INTENDED ONLY TO SECURE THE ADVANTAGES PROVIDED FOR BY ITALIAN LAW , AND THE DEFENDANT ACKNOWLEDGED THAT UNDER THE ARBITRATION CLAUSE IN THE CONTRACTS , BASED ON ARTICLE 42 OF THE ECSC TREATY , ARTICLE 181 OF THE EEC TREATY AND ARTICLE 153 OF THE EAEC TREATY , THE JURISDICTION OF THE COURT OF JUSTICE WAS INCONTESTABLE .

10 IN THOSE CIRCUMSTANCES , IT IS NOT APPROPRIATE TO EXAMINE THE QUESTIONS OF PROCEDURE RAISED BY THE PARTIES IN THEIR WRITTEN SUBMISSIONS . IN FACT , IT IS SUFFICIENT TO NOTE THAT THE JURISDICTION OF THE COURT IS BASED ON THE ARBITRATION CLAUSE CONTAINED IN EACH OF THE CONTRACTS SIGNED AS FROM THE ACADEMIC YEAR 1976/77 . THE FACT THAT THE SAME CLAUSE DOES NOT APPEAR IN THE PREVIOUS CONTRACTS AND THAT , AS REGARDS THE FIRST YEARS , THERE WERE NOT EVEN ANY WRITTEN CONTRACTS IS NO OBSTACLE TO THE COURT ' S HAVING REGARD , IN ITS ASSESSMENT OF THE RELATIONS BETWEEN THE PARTIES , TO ALL THE CONTRACTS ENTERED INTO , A FACT WHICH IS , MOREOVER ACKNOWLEDGED BY THE PARTIES THEMSELVES .

SUBSTANCE OF THE CASE

11 IT IS INCONTESTABLE THAT ITALIAN LAW IS APPLICABLE TO THE CONTRACTUAL RELATIONS BETWEEN THE PARTIES . IT IS THEREFORE ON THE BASIS OF THAT LAW THAT THE PROBLEM OF THE CLASSIFICATION OF THOSE RELATIONS AND THE CONSEQUENCES DERIVING THEREFROM MUST BE RESOLVED .

12 TO THAT END , IT IS NECESSARY TO ESTABLISH IN THE FIRST PLACE WHETHER THE APPLICANT ' S WORK FOR THE CENTRE FROM 1963 TO 1980 HAS GIVEN RISE TO AN EMPLOYMENT RELATIONSHIP OF INDEFINITE DURATION , REGARD BEING HAD TO THE PURPOSE FOR WHICH THE WORK WAS DONE , THE DURATION THEREOF AND THE MANNER IN WHICH IT WAS PERFORMED .

13 ACCORDING TO ITALIAN LAW , THE FUNDAMENTAL CRITERION FOR DISTINGUISHING BETWEEN INDEPENDENT WORK ( ' ' LAVORO AUTONOMO ' ' ) AND EMPLOYMENT ( ' ' LAVORO SUBORDINATO ' ' ) IS BASED ON THE FACT THAT THE SUBJECT-MATTER OF INDEPENDENT WORK IS THE ' ' OPUS ' ' , THAT IS TO SAY THE RESULT OF THE WORKER ' S ACTIVITY , WHEREAS THE SUBJECT-MATTER OF EMPLOYMENT IS THE WORK EFFORT ( ' ' OPERAE ' ' ) WHICH THE WORKER PLACES AT THE DISPOSAL OF THE EMPLOYER , EXPENDING THAT EFFORT UNDER THE SUPERVISION AND IN ACCORDANCE WITH THE INSTRUCTIONS OF THE EMPLOYER .

14 IN ACCORDANCE WITH THAT CRITERION , ITALIAN CASE-LAW CONSISTENTLY DECLINES TO CLASSIFY TEACHING ACTIVITY AS INDEPENDENT WORK WHEN THAT ACTIVITY IS CARRIED OUT SUBJECT TO THE CONTROL OF THE PRINCIPAL OF THE SCHOOL , IS PAID FOR MONTHLY AND INVOLVES THE FULFILMENT OF PROGRAMMES DRAWN UP BY THE MANAGEMENT OF THE SCHOOL AND COMPLIANCE , WHICH MAY BE SUBJECT TO VERIFICATION , WITH A PRE-DETERMINED TIMETABLE .

15 IN THIS CASE , IT IS APPARENT FROM THE WORDING OF THE CONTRACTS ENTERED INTO FROM 1976 TO 1980 THAT THE APPLICANT , ALTHOUGH ENJOYING , LIKE EVERY TEACHER IN A PUBLIC OR PRIVATE SCHOOL , INDEPENDENCE REGARDING HER TEACHING METHODS , NEVERTHELESS HAD TO FOLLOW PROGRAMMES AND PURSUE PEDAGOGICAL OBJECTIVES WHICH WERE ESTABLISHED IN ADVANCE BY THE MANAGEMENT OF THE SCHOOL , THAT THE STARTING AND FINISHING DATES OF THE COURSES , THE HOLIDAYS AND THE TIMETABLE WERE FIXED ACCORDING TO THE SERVICE REQUIREMENTS OF THE INSTITUTION AND THAT THE PAYMENT OF REMUNERATION WAS MONTHLY . IT FOLLOWS FROM THIS THAT THE CONDITIONS LAID DOWN IN ITALIAN CASE-LAW FOR WORK TO BE CONSIDERED AS ' ' EMPLOYMENT ' ' HAVE BEEN SATISFIED IN THE APPLICANT ' S CASE .

16 THE COMMISSION CONTENDS THAT THE ITALIAN CASE-LAW RELIED UPON BY THE APPLICANT RELATES ONLY TO SCHOOLS IN THE PRIVATE TEACHING SECTOR OPERATED ON A PROFIT-MAKING BASIS AND CANNOT THEREFORE APPLY TO A SCHOOL MANAGED BY A COMMUNITY INSTITUTION OF A PUBLIC NATURE , PURSUING EXCLUSIVELY OBJECTIVES OF PUBLIC UTILITY . THAT VIEW IS WITHOUT FOUNDATION . IT HARDLY REFLECTS THE IMPORTANCE WHICH THE DEFENDANT ITSELF ATTRIBUTED TO THE PRIVATE NATURE OF THE RELATIONSHIP AT ISSUE . MOREOVER , THE CRITERIA FOR DETERMINING WHETHER OR NOT A WORK RELATIONSHIP CONSTITUTES EMPLOYMENT CANNOT VARY ACCORDING TO THE PUBLIC OR PRIVATE NATURE OF THE EMPLOYER . IN ANY EVENT , ITALIAN CASE-LAW CONSISTENTLY RECOGNIZES THAT AN EMPLOYMENT RELATIONSHIP , EVEN ONE WITH A PUBLIC INSTITUTION , IS OF A PRIVATE CHARACTER WHERE THE DUTIES OF THE WORKERS DO NOT FALL WITHIN THE FRAMEWORK OF THE INSTITUTIONAL FUNCTIONS OF THE INSTITUTION CONCERNED , WHICH IS PRECISELY THE SITUATION IN THIS CASE .

17 THE COMMISSION FURTHER OBSERVES , IN ITS DEFENCE , THAT THE RELATIONSHIP AT ISSUE IS NOT SINGLE AND CONTINUOUS SINCE IT IS MADE UP OF SEVERAL DISTINCT CONTRACTS . IN THAT REGARD , IT SHOULD BE NOTED THAT THE FIRST PARAGRAPH OF ARTICLE 1 OF ITALIAN LAW NO 230 OF 18 APRIL 1962 ( GAZZETTA UFFICIALE ( ITALIAN OFFICIAL GAZETTE ) NO 125 OF 17 MAY 1962 ) LAYS DOWN THE GENERAL RULE THAT EVERY EMPLOYMENT CONTRACT MUST BE CONSIDERED AS BEING OF INDEFINITE DURATION AND THAT THE STIPULATION OF A SPECIFIC PERIOD OF VALIDITY IS ALLOWED ONLY IN THE CASES REFERRED TO IN THE SECOND PARAGRAPH OF THAT ARTICLE , OF WHICH MORE DETAILS ARE GIVEN IN DECREE NO 1252 OF THE PRESIDENT OF THE REPUBLIC OF 7 OCTOBER 1963 , ISSUED PURSUANT TO THAT LAW ( GAZZETTA UFFICIALE NO 307 OF 26 NOVEMBER 1963 ).

18 THE COMMISSION CONTENDED IN ITS DEFENCE THAT THE RELATIONSHIP AT ISSUE FALLS WITHIN THE PROVISIONS OF ARTICLE 1 ( 2 ) ( C ) OF LAW NO 230 OF 1962 CONCERNING COMMITMENTS ENTERED INTO ' ' WITH A VIEW TO PERFORMANCE OF WORK OR A SERVICE DEFINED AND DETERMINED IN ADVANCE , OF AN EXTRAORDINARY OR OCCASIONAL NATURE ' ' . IT ALSO SOUGHT TO RELY UPON ARTICLE 51 OF DECREE NO 1252 ABOVE-MENTIONED , CONCERNING STAFF RESPONSIBLE FOR ' ' VOCATIONAL TRAINING COURSES OF SHORT DURATION ' ' . THOSE ARGUMENTS , AS THE COMMISSION ITSELF ADMITTED AT THE HEARING , CANNOT BE UPHELD , SINCE IN THIS CASE THE RELATIONSHIP IS ONE WHICH EXTENDED WITHOUT INTERRUPTION OVER 17 YEARS .

19 THE COMMISSION FURTHER CLAIMS THAT THE REMUNERATION PAID TO THE APPLICANT IS HIGHER THAN THAT PROVIDED FOR BY THE NATIONAL COLLECTIVE AGREEMENT REFERRED TO BY HER , EVEN IF REGARD IS HAD TO THE FACT THAT SHE DID NOT ENJOY A NUMBER OF ADVANTAGES PROVIDED FOR BY THAT AGREEMENT . THAT FACT , EVEN IF IT WERE TRUE , DOES NOT AFFECT THE RIGHTS CLAIMED BY THE APPLICANT , SINCE THE LEVELS OF REMUNERATION PROVIDED FOR IN THE AGREEMENT ARE MERELY MINIMUM LEVELS .

20 IT MUST THEREFORE BE CONCLUDED THAT THE TEACHING PROVIDED OVER A PERIOD OF 17 YEARS BY THE APPLICANT AT THE TECHNICAL AND VOCATIONAL TRAINING SCHOOL AT THE CENTRE INVOLVED AN EMPLOYMENT RELATIONSHIP OF INDEFINITE DURATION AND THAT ACCORDINGLY THE APPLICANT IS ENTITLED TO THE BENEFIT OF EVERY ADVANTAGE WHICH ITALIAN LAW ATTACHES TO A RELATIONSHIP OF THAT KIND .

21 AS REGARDS THE RETIREMENT PENSION , THE APPLICANT HAS ABANDONED HER INITIAL CLAIM THAT SHE BE CLASSIFIED AS AN EMPLOYEE OF THE COMMISSION AND BE GRANTED A COMMUNITY PENSION . THERE IS NO NEED THEREFORE TO ADJUDICATE ON THAT MATTER . ON THE OTHER HAND , IT SHOULD BE MADE CLEAR THAT THE APPLICANT IS ENTITLED TO BE GRANTED , IN SUCH MANNER AS MAY BE AGREED BETWEEN THE PARTIES , THE EQUIVALENT OF THE RETIREMENT PENSION TO WHICH SHE WOULD HAVE BEEN ENTITLED UNDER ITALIAN LEGISLATION IF THE CENTRE HAD NOT FAILED TO INSURE HER WITH THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( NATIONAL SOCIAL WELFARE INSTITUTION ) AND TO PAY THE CONTRIBUTIONS FOR THAT INSURANCE , IN ACCORDANCE WITH THE PROVISIONS OF THE LAW GOVERNING THE CONTRACT .

22 FOR THOSE PURPOSES , IT IS APPROPRIATE TO SPECIFY A PERIOD WITHIN WHICH THE PARTIES ARE CALLED UPON TO REACH AGREEMENT AS TO THE PECUNIARY CONSEQUENCES OF THE CLASSIFICATION OF THE RELATIONSHIP MADE IN THIS JUDGMENT . THE COURT RESERVES THE RIGHT , IN DEFAULT OF AGREEMENT WITHIN SUCH PERIOD , TO TAKE A DECISION ON THOSE MATTERS AND ALSO ON COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

BY WAY OF INTERLOCUTORY JUDGMENT IN THE ACTION BROUGHT BY MRS PACE , NEE PORTA , HEREBY :

1 . DECLARES THAT THE APPLICANT ' S TEACHING ACTIVITY AT THE VOCATIONAL TRAINING SCHOOL AT THE ISPRA JOINT RESEARCH CENTRE IMPLIES THE EXISTENCE OF AN EMPLOYMENT RELATIONSHIP FOR AN INDEFINITE PERIOD , WITHIN THE MEANING OF THE APPLICABLE ITALIAN LEGISLATION ;

2.INVITES THE PARTIES TO REACH AN AGREEMENT AS TO THE PECUNIARY CONSEQUENCES OF THAT CLASSIFICATION OF THE RELATIONSHIP , AS REGARDS BOTH THE APPLICANT ' S REMUNERATION WHILST EMPLOYED AND HER RETIREMENT PENSION , WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF THIS JUDGMENT ;

3.DECLARES THAT IF NO AGREEMENT IS REACHED WITHIN THAT PERIOD THE COURT WILL ADJUDICATE ON THE APPLICANT ' S CLAIM REGARDING THE REMUNERATION AND PENSION DUE TO HER ;

4.RESERVES THE COSTS .