Case T-45/01

Stephen G. Sanders and Others

v

Commission of the European Communities

(Staff employed at the JET Joint Undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage sustained)

Judgment of the Court of First Instance (First Chamber), 12 July 2007 

Summary of the Judgment

1.     Procedure – Introduction of new pleas during the proceedings

(Rules of Procedure of the Court of First Instance, Art. 44)

2.     Officials – Actions – Unlimited jurisdiction

3.     Officials – Actions – Unlimited jurisdiction

4.     Officials – Actions – Unlimited jurisdiction

1.     Claims with supporting figures lodged in a compensation action, after the delivery of an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by staff members of an EAEC joint undertaking by reason of the application of a legal status different from that of members of the temporary staff, amended to take account of the method for calculating the loss suffered laid down in the interlocutory judgment, cannot be held inadmissible since they represent a permissible amplification of the claims contained in the application, especially inasmuch as, first, the Court of First Instance determined the criteria necessary in order to calculate the damage for the first time in its interlocutory judgment and, second, the exact composition of the damage and the precise method of calculating the compensation payable had not yet been debated.

Since the interlocutory judgment laid down the period for which compensation is due, the elements which go to make it up and the method to be followed in determining the exact amount of damages accruing to each applicant, it must necessarily be possible to adjust the quantum of the individual claims of each applicant after that judgment.

(see paras 21-22)

2.     In a compensation action, after the delivery of an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by staff members of the Joint European Torus (JET) Joint Undertaking by reason of the application of a legal status different from that of members of the temporary staff, the classification in grade and step of each applicant at the beginning of the liability period must be decided in the light of his actual recruitment, the said period lasting, for each applicant, for five years from the effective date of the earliest contract concluded or renewed with the undertaking, that date being no more than five years before the submission of his request for compensation.

Whilst the Court of First Instance limited each applicant’s right to compensation to a period of no more than five years, it nevertheless held that, from the outset, that is to say, from their first employment, the parties concerned should have been recruited as temporary staff, the unlawful conduct having persisted throughout the duration of the joint undertaking. Consequently, the situation of each applicant at the start of the liability period must not be deemed equivalent to that on first recruitment, but dealt with having regard to the fact that, from his first engagement as a member of the contract staff, the party concerned should have been recruited as a member of the temporary staff, which means taking into account, where appropriate, the ‘career’ he had up to the start of the liability period. Such a method of ‘career reconstruction’ must include the promotions from which each applicant could have benefited.

Concerning promotions during the liability period, it is in relation to the situation of the actual members of the project team at JET that the Court of First Instance considered that the applicants had been kept in a legal position in which they suffered discrimination constituting a culpable illegality and that they had, consequently, suffered loss. Consequently, the ‘comparable position’ of temporary staff members of the EAEC which must serve as the point of comparison in order to determine the career progressions from which the applicants would have benefited is that – where appropriate more favourable – of the actual members of the project team at JET.

(see paras 49-51, 65, 68)

3.     In an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by staff members of the Joint European Torus (JET) Joint Undertaking by reason of the application of a legal status different from that of members of the temporary staff, the Court of First Instance held the applicants’ loss lay in the difference between the salaries and related benefits which the persons concerned would have received if they had worked for the JET project as members of the temporary staff and the salaries and related benefits which they actually received as members of the contract staff.

It follows, first, that in order to determine the net Community income that each applicant would have received during the liability period determined by the Court of First Instance if he had been recruited as a member of the temporary staff, it is necessary to take into account all the advantages to which the party concerned would have been entitled, having regard to the criteria concerning his personal and professional situation in respect of which he was able to provide written evidence. Conversely, it is not necessary to include the claims for expenses which would have been received for missions, since at JET all subsistence costs were reimbursed, whilst there was little or no daily allowance. Secondly, in order to determine the net national revenue received by each applicant as a member of the contract staff during the liability period, it is necessary to take into account the entire salary that the parties concerned received on that basis, in particular, the daily allowance which certain of the applicants may have received for having to commute to the JET premises.

(see paras 77-79)

4.     In an interlocutory judgment in which the Court of First Instance ordered the Community to make good the loss suffered by staff members of the Joint European Torus (JET) Joint Undertaking by reason of the application of a legal status different from that of members of the temporary staff, the Court of First Instance held that, from the outset, the applicants should have been recruited as temporary staff and that the unlawful conduct lasted longer than the liability period determined by the Court of First Instance. That finding necessarily entails account being taken of the fact that the applicants were able to acquire pension rights for the entire period that each of them actually worked at JET, but compensation for any such rights is limited to the liability period.

Consequently, in order to determine that part of the damages corresponding to pension rights, it is necessary to consider, for each of the applicants, the date of their first actual recruitment at JET, where appropriate before the liability period, the damages being due in respect of the loss of pension rights for a maximum of five years corresponding to the liability period. Those five years do not therefore constitute the only years of entitlement to rights. It is the whole period of employment for each applicant at JET which entitles him to pension rights, the respective rights then being reduced in proportion to the ratio of the liability period to his total period of employment.

Moreover, it is necessary to consider whether the damages due in respect of pension rights may not be lower than the actuarial value of the reserves built up in the name of each applicant by workers’ and employers’ contributions in respect of the maximum of five years corresponding to the liability period.

Where, conversely, an applicant, because in particular he has worked at JET for fewer than 10 years, would not in any event, under the provisions of the Staff Regulations, be entitled to a service pension but only to a severance grant, compensation in respect of the loss of that grant, reduced in proportion to the ratio of the liability period to his total period of employment, constitutes the alternative which must necessarily be granted to him.

(see paras 90-93)

JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

12 July 2007 (*)

(Staff employed at the JET Joint Undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage sustained)

In Case T‑45/01,

Stephen G. Sanders, residing in Oxfordshire (United Kingdom) and the 94 applicants whose names appear in the annex, represented initially by P. Roth QC, I. Hutton, E. Mitrophanous and A. Howard, Barristers, and subsequently by P. Roth QC, I. Hutton and B. Lask, Barristers,

applicants,

v

Commission of the European Communities, represented by J. Currall, acting as Agent,

defendant,

supported by

Council of the European Union, represented initially by J.‑P. Hix and A. Pilette and subsequently by J.‑P. Hix and B. Driessen, acting as Agents,

intervener,

APPLICATION to determine pursuant to the judgment of the Court of First Instance of 5 October 2004 in Case T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315 the amount of compensation due for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as members of the temporary staff of the European Communities for the time they worked at the Joint European Torus (JET) Joint Undertaking,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of B. Vesterdorf, President of the Chamber, M. Jaeger and H. Legal, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 20 March 2007,

gives the following

Judgment

 Background to the dispute and procedure

1       By judgment of 5 October 2004 in Case T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315 (‘the interlocutory judgment’), the Court of First Instance held that, in failing, in breach of the Statutes of the Joint European Torus (JET) Joint Undertaking, to offer the applicants contracts as members of the temporary staff, the Commission had committed an act of culpable illegality such as to give rise to the liability of the European Community, that that unlawful conduct had resulted in the loss to them of a genuine chance of recruitment as members of the temporary staff and that the applicants’ loss lies in the difference between the salaries, related benefits and pension rights which the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary staff and the salaries, related benefits and pension rights which they actually received or acquired as members of the contract staff (paragraphs 142, 158 and 167 of the interlocutory judgment).

2       However, the Court of First Instance found that the applicants should have submitted their requests for compensation within a reasonable period, which cannot exceed five years from the time they became aware of the discrimination they complain of, and held that the damages due should be calculated, for each applicant, from the effective date of the earliest contract concluded or renewed with the applicant in each case, that date being no more than five years before the submission of his request for compensation to the Commission (paragraph 72 of the interlocutory judgment).

3       Since the Court of First Instance was not in a position to determine the damages due to each of the applicants, the interlocutory judgment (paragraph 170) fixed the principles and criteria on the basis of which the parties were called upon to seek a settlement, failing which they were to put their submissions on the quantum of damages before the Court of First Instance.

4       Accordingly, the parties were to:

(1)      determine the post and grade which each applicant would have held, on the basis of the functions he carried out, if he had been offered a contract as a member of the temporary staff on the effective date of the earliest contract concluded or renewed, that date not to be earlier than five years from the presentation of the request for compensation (paragraphs 169 and 171 of the interlocutory judgment);

(2)      reconstruct the career of the person concerned from the time of his recruitment or the start of the abovementioned five-year period at the earliest, taking into account:

–       the average increase in salary for the equivalent post and grade of a member of the staff of the European Atomic Energy Community (EAEC), working for JET if applicable;

–       any promotions the person concerned may have had during that period in the light of the grade and post selected, on the basis of the average number of promotions of members of the temporary staff of the EAEC in a comparable position (paragraph 172 of the interlocutory judgment);

(3)       make the comparison between the situation of a member of the temporary staff of the Communities and that of a member of the contract staff in respect of net amounts, net of contributions, deductions or other levies charged under the applicable legislation (paragraph 173 of the interlocutory judgment).

5       The Court of First Instance held that the liability period runs from the effective date of the earliest contract concluded or renewed in the five‑year period before the submission of the request for compensation and ends either on the date on which the person concerned stopped working for the JET project, if that was before the end of the project on 31 December 1999, or on that date if he worked for the JET project until its conclusion (paragraph 174 of the interlocutory judgment).

6       Finally, the Court of First Instance held that, since the damages compensate for the loss of salary and related benefits covered by the Protocol on the Privileges and Immunities of the European Communities and are calculated taking into account Community tax, they are net of any taxation and cannot be subject to deductions of national tax (paragraph 176 of the interlocutory judgment).

7       Being unable to reach an agreement on all the points relating to the precise determination of the damages due to each of the applicants, the parties sent their submissions on the quantum of damages to the Court of First Instance on 28 October 2005.

8       By measure of organisation of procedure notified on 19 December 2006, the Court of First Instance requested from the parties, in accordance with Article 64 of its Rules of Procedure, information and clarification concerning the points of difference which remained between them with regard to the assessment of the damage suffered by each of the applicants.

9       The applicants replied to the Court of First Instance’s request by letter lodged at the Registry on 20 February 2007. The Commission made its observations known on the applicants’ replies by letter lodged at the Registry on 1 March 2007.

10     In their replies to the Court of First Instance’s request, the parties, who set out their submissions on the quantum of damages following the measure of organisation of procedure, indicated that they had resolved certain of their disagreements and highlighted the points which were still at issue.

11     By order of the President of the First Chamber of the Court of First Instance of 7 March 2007, the application of the United Kingdom of Great Britain and Northern Ireland to intervene presented on 27 February 2007 was dismissed as being out of time in accordance with the combined provisions of Articles 115(1) and 116(6) of the Rules of Procedure.

12     At the hearing on 20 March 2007, the parties presented their oral arguments and their answers to the questions put by the Court of First Instance. The Commission submitted an amended version of the annexes to its observations of 1 March 2007.

13     At the end of the hearing, the President granted the applicants one week in which to submit any amendments in the light of the documents submitted at the hearing by the Commission. On 27 March 2007, following an application from the applicants, the President granted an extension of the time to the Commission and to the applicants until 30 March and 3 April 2007 respectively to enable the Commission to make final corrections to its submissions on the quantum of damages and the applicants to formulate their observations thereon.

14     The oral procedure was closed on 17 April 2007.

 Submissions of the parties

15     The applicants claim that the Court of First Instance should:

–       order the Commission to compensate them for their loss of earnings and other benefits caused by the breaches of Community law committed in respect of them, by paying a total amount for all the applicants of GBP 27 744 467, as at 31 October 2005;

–       order the Commission to pay the costs.

16     The Commission, supported by the Council, contends that the Court of First Instance should:

–       order it to compensate the applicants pursuant to the interlocutory judgment in accordance with its observations, in the total amount for all the applicants of GBP 5 767 682, as at 31 October 2005;

–       order it to pay half the applicants’ costs.

 Law

 Scope of the dispute rationae personae

17     In reply to the questions asked by the Court of First Instance at the hearing, the applicants stated that two of them – M. Organ and M.R. Sibbald – were not submitting claims for damages.

18     It is consequently necessary for the Court of First Instance to take formal note of this and to find that 93 of the 95 applicants are submitting claims for damages.

19     The applicants have moreover indicated that Ms S. Rivers, who got married in the course of the proceedings, is referred to in the claims for damages as Ms S. Playle. To avoid all risk of confusion, in the present judgment she is referred to as Ms Rivers‑Playle.

 On the quantum of the claims for damages

20     Without raising a plea of inadmissibility, the Commission contends that the applicants’ claims for damages for the liability period laid down in the interlocutory judgment (1995 to 1999) are more than one and a half times greater than their original claims. It considers that, although those claims have been adjusted by the applicants in the light, inter alia, of information which it provided to them in the course of their discussions, that substantial increase in the applicants’ claims may fail to satisfy the provisions of Article 44 of the Rules of Procedure.

21     As to the principle, it is necessary to point out that the Court of Justice allowed an increase in the original claims in a case in which an interlocutory judgment had laid down the method for calculating the loss suffered and in which an expert’s report had been ordered, holding those amended claims to be admissible. It found that they represented a permissible, indeed necessary, amplification of the claims contained in the application, especially inasmuch as, first, the Court of Justice determined the criteria necessary in order to calculate the damage for the first time in its interlocutory judgment and, second, the exact composition of the damage and the precise method of calculating the compensation payable had not yet been debated. The Court of Justice added that it had ordered the parties to submit statements of their views with supporting figures in the event of their failing to reach agreement on the quantum of damages. It held that that order would be pointless and meaningless if, following delivery of that judgment, the parties were precluded from formulating claims different from those contained in their application (Joined Cases C‑104/89 and C‑37/90 Mulder and Others v Council and Commission [2000] ECR I-203, paragraphs 38 to 40).

22     Similarly, in the present case, since the interlocutory judgment laid down the period for which compensation is due, the elements which go to make it up and the method to be followed in determining the exact amount of damages accruing to each applicant, it must necessarily be possible to adjust the quantum of the individual claims of each applicant after that judgment.

23     Moreover, according to the court file, the applicants’ claims for damages of 31 October 2005, revised in the light of the grounds of the interlocutory judgment, are lower and not higher than their original claims, if one takes into consideration their total amount and not, as the defendant has done, only that part of the original claim which relates to the liability period.

24     It follows from the foregoing that the Commission’s observation on the quantum of the final claims must be dismissed as irrelevant.

 Preliminary observations

25     The purpose of the present judgment is to determine the damages due to the applicants in compensation for the loss arising from the unlawful conduct found by the interlocutory judgment, in accordance with the principles and criteria laid down therein, as set out at paragraphs 1 to 6 above, where the parties have not been able to reach a complete agreement on all the points at issue for the purpose of putting into effect the principles and criteria laid down by the Court of First Instance.

26     It is necessary to state at the outset that the interlocutory judgment has not been challenged (i) on the principle of recognition of Community liability owing to the unlawful conduct found, (ii) on that of the recognition of the loss suffered by the applicants, whose rights to compensation were limited to a maximum of five years, or (iii) as regards the principles and criteria which are to be used to determine the damages due to each of the applicants. That judgment has therefore become definitive on all those points, which have acquired the status of res judicata and are binding for the final resolution of the dispute (judgment in Case C-281/89 Italy v Commission [1991] ECR I‑347, paragraph 14; and orders in Case C‑397/95 P Coussios v Commission [1996] ECR I‑3873, paragraph 25; and Case C‑277/95 P Lenz v Commission [1996] ECR I‑6109, paragraphs 48 to 54; and, as to the res judicata authority of an interlocutory judgment, Mulder and Others v Council and Commission, paragraphs 54 to 56). The Commission has, moreover, pointed out in its abovementioned observations of 1 March 2007, that neither it nor the applicants have brought an appeal before the Court of Justice against the interlocutory judgment of 5 October 2004 and that that judgment has therefore acquired the definitive status of res judicata.

27     Moreover, as the dispute stood at the close of the oral procedure, it was apparent that, in comparison with their respective claims of 28 October 2005, the parties had reached agreement on a certain number of general or specific questions concerning the determination of the damages due to each applicant in the light of the principles and criteria laid down by the interlocutory judgment.

28     It appears that the parties are agreed on the general methodology for calculating the applicants’ losses, the identification of the main components of income, whether Community or national, to be taken into account, the application of simple interest at a rate of 5.25% to the final amount of the damages due to the applicants, and the fact that the damages received by each of them are not taxable under United Kingdom legislation, the question of the tax regime applicable to the damages having been expressly and definitively dealt with by the interlocutory judgment (see paragraph 6 above). It is also apparent from the court file that the parties came to an agreement that two of the applicants, D. Hamilton and T. Price, who were unemployed after leaving JET, were entitled to an allowance in that respect, in accordance with the applicable rules.

29     The submissions lodged by the parties on 28 October 2005 state that differences remain regarding six points necessary for a precise determination of the damages due to each applicant and which the parties submit to the Court of First Instance for a ruling. They concern, first, the start of the liability period for each applicant (see paragraph 5 above), second, the grade and step to be determined for each of them at the start of the liability period (see paragraph 4 above), third, the promotions from which the applicants would have benefited (see paragraph 4 above), fourth, the related benefits linked to the salaries which they would have been able to receive (see paragraph 1 above), fifth, the contributions, deductions and other charges which must be taken into consideration in order to determine the net revenue of a member of the temporary staff and that of a member of the contract staff (see paragraph 4 above) and, sixth, the pension rights which each of the applicants could claim (see paragraph 1 above).

30     Following the measure of organisation of procedure notified on 19 December 2006, the parties reached further agreement on certain issues. They came to an agreement in relation to, first, the start date of the liability period and, second, the contributions, deductions and other charges to take into account in order to determine the income actually received by the parties concerned in their capacity as contract staff. More or less significant differences remain however concerning other points in dispute.

31     Moreover, the parties, whose views converge in that respect, set out in their pleadings and at the hearing their difficulties in securing acceptance by the United Kingdom tax authorities that, pursuant to the Court of First Instance’s finding in its interlocutory judgment, the damages to be received by the applicants cannot be subject to the deduction of national tax, those authorities having indicated their intention to tax, if not the principal, then at least the interest accruing on the damages. The applicants and the Commission claim that the Court of First Instance should give a specific ruling on the question of the exemption from tax of the damages, including both principal and interest.

32     It is necessary to examine the six headings set out at paragraph 29 above one after the other, highlighting the points of disagreement and, also, the question of the tax regime for interest due on the damages which the applicants are to receive.

 Points of agreement

 The start of the liability period

33     The Court of First Instance held in the interlocutory judgment that the damages due should be calculated, for each applicant, from the effective date of the earliest contract concluded or renewed with the applicant in each case, that date being no more than five years before the submission of his request for compensation to the Commission and falling between 12 November 1994 and 16 February 1995 (paragraphs 84 and 169 of the interlocutory judgment). Moreover, it is clear from the judgment (paragraph 174) that the liability period ends on the date on which the applicant concerned stopped working for the JET project if that was before the end of the project on 31 December 1999, or on that date if he worked for the JET project until its conclusion.

34     It is clear from the parties’ replies to the measure of organisation of procedure referred to at paragraph 8 above that the parties reached an agreement, in accordance with the reasons stated in the interlocutory judgment, as set out above, concerning the start date of the liability period and the length of that period for each applicant.

35     It is necessary for the Court of First Instance to take formal note of the agreement reached by the parties and to declare the date fixing the start of the liability period for each of the applicants, as indicated in the second column of Annex 2 to the present judgment.

 Contributions, deductions and other charges

36     The Court of First Instance held in the interlocutory judgment (paragraph 173) that, in order to determine the damage suffered, the comparison between the position of a member of the temporary staff of the Communities and that of a member of the contract staff, such as each of the applicants, must be made in respect of net amounts, net of contributions, deductions or other levies charged under the applicable legislation.

37     Further to the measure of organisation of procedure, in accordance with the abovementioned grounds of the interlocutory judgment, for the calculation of the income received as contract staff, the applicants deducted the amounts initially included in their claims of 28 October 2005 corresponding to pension fund payments, except for eight of them whose insurance policies, comparable to the regime under the Staff Regulations, covered the risk of accidents and occupational diseases. The Commission accepted that methodology.

38     It is necessary for the Court of First Instance to take formal note of that in order to make its finding as to the net revenue that each applicant actually received as a member of the contract staff during the liability period.

 Points of disagreement

 Grade and step at the start of the liability period

– Arguments of the parties

39     The applicants assert that the grade and step are to be determined, not only taking into account their academic qualifications and their previous professional experience, but also on the basis of the career of each person at JET from the moment he in fact started working there, which, for a number of them, will be before the start of the liability period. They are of the view that, by its interlocutory judgment, the Court of First Instance laid down a test of functional equivalence between posts held as contract staff and those held as temporary staff. The applicants state that, in order to establish that functional equivalence, they consulted a memorandum of the Head of Contracts at JET, Mr Byrne, of 25 August 1989.

40     The applicants assert, in reliance on the interlocutory judgment, that, since they were in fact recruited to work for JET, the Commission cannot require the same level of evidence today – which would in certain cases be impossible to produce – as would have been required in the actual recruitment exercise. Moreover, they state that each of them has provided a formal witness statement attesting to his previous career and curriculum vitae.

41     The Commission maintains that the grade and step are to be determined at the effective date of the earliest contract included within the liability period, taking into account the qualifications and previous professional experience of each applicant as if it were a first recruitment. It is of the view that the applicants must produce the same evidence, concerning qualifications and professional experience as if the applicant concerned had actually been recruited. The defendant contends that it follows from the interlocutory judgment that the Community incurred liability and damages are payable in respect of a maximum period of five years and that earlier contracts cannot be taken into consideration.

42     The Commission states moreover that the relevant documents, which it used to determine posts and grades, are, first, the Commission decision of 11 October 1984 on criteria applicable to the classification by grade and step upon recruitment of scientific and technical staff and, second, the Commission decision, which came into force on 1 September 1983, concerning the criteria applicable to appointment in grade and classification in step on recruitment, as regards administrative staff.

43     The defendant also raises the question of the admissibility of the evidence which was sent to it by the applicants, mostly in July, or even in September or October 2005, in the light of Article 44 of the Rules of Procedure.

44     In addition, it is clear from the parties’ replies to the measure of organisation of procedure that they partly agree on certain points. First, the parties agree that the classification C 3‑B 5/B 3, which was used at JET, applies to the 22 applicants concerned. Second, the Commission agrees that the academic qualification of ‘Chartered Engineer’, which concerns five of the applicants, must be accepted for entry to category A. However, the Commission objects to the classification of the holders of ‘Ordinary National Diploma’ and ‘City & Guilds Part III’ qualifications in category B.

–       Findings of the Court

45     As a preliminary point, as to the evidence concerning the applicants’ qualifications and professional experience which is of assistance in determining the grade and step of each of the applicants at the start of the liability period, it must be observed that, in its interlocutory judgment, the Court of First Instance held that, in view of their qualifications in particular, the applicants had genuine prospects of being appointed as members of the temporary staff (paragraphs 156 and 158 of the interlocutory judgment). Therefore, in order to determine the damages due to each of the applicants, it is not necessary to examine whether at the start date of the liability period the party concerned fulfilled the conditions for such recruitment. It follows from the grounds of the interlocutory judgment that the level of evidence required in order to determine the classification of each applicant cannot be equivalent to that for an actual recruitment, as the Commission maintains.

46     Regarding the defendant’s allegation that certain evidence which the applicants sent to it between the months of July and October 2005 was out of time under Article 44 of the Rules of Procedure, the admissibility of that evidence cannot be challenged on the facts of the present case.

47     In fact, it was the grounds of the interlocutory judgment, ruling on the principle of Community liability, which defined the loss suffered by the applicants, fixed the method to follow in determining the amount thereof and which, by referring in particular to the academic qualifications and professional experience and to the functions carried out at JET, enabled the parties to identify the relevant factors for the determination of the damages due. Having regard to the extensions of time requested by the applicants in respect of which the defendant did not raise an objection and the fact that the defendant allowed the applicants access to the JET archives only at the end of December 2005, it is not possible to challenge the admissibility of any evidence whatsoever.

48     As to the classification in grade and step of each of the applicants at the start of the liability period, it is necessary to point out that, in the interlocutory judgment, the Court of First Instance held that the posts and the qualifications of the applicants, as listed by the Commission, appear comparable, in terms of their nature and level, to those of the actual members of the project team. It stated (paragraph 121) that the Commission admitted that there was no fundamental difference between the members as such of the project team and the applicants, the qualifications and professional experience of both being similar. It also found (paragraph 122) that similarity of functions to be confirmed by the JET establishment plan.

49     Thus, it follows from the interlocutory judgment (paragraphs 169 and 171) that the post, the grade and the step to be determined for each applicant must correspond to the functions they carried out at JET at the effective date of the earliest contract concluded or renewed within the liability period, the functions at issue being those which the party concerned carried out at JET at that date, if he was already working there previously, which is the case for most of the applicants, or rather the functions with a view to which he at that time started to work there. The classification of each applicant must therefore be decided in the light of his actual recruitment by JET, which was, generally, before the start date of the liability period.

50     Whilst the Court of First Instance limited each applicant’s right to compensation to a period of no more than five years, it nevertheless held that, from the outset, that is to say, from their first employment, the parties concerned should have been recruited as temporary staff, the unlawful conduct having persisted throughout the duration of JET (paragraphs 128 and 140 of the interlocutory judgment). Contrary to the Commission’s contention, the finding of unlawful conduct relates to the entire duration of the employment at JET but compensation is due, on the grounds set out in the interlocutory judgment (paragraphs 59 to 85), only for the liability period defined thereby.

51     Consequently, the situation of each applicant at the start of the liability period must not be deemed equivalent to that on first recruitment, but dealt with having regard to the fact that, from his first engagement as a member of the contract staff, the party concerned should have been recruited as a member of the temporary staff, which means taking into account, where appropriate, the ‘career’ he had up to the start of the liability period, in order to determine the classification which corresponds to the functions carried out by each of them at the start of that period.

52     Moreover, contrary to the Commission’s contention, taking into account the earlier ‘career’ at JET does not, strictly speaking, mean reconstructing that career, but rather taking into account, where appropriate, the classification which the party concerned had reached as a member of the contract staff at JET, as follows from the interlocutory judgment, which refers to the functions carried out by each applicant at the start of the liability period, in order to determine the post and the grade of each applicant (paragraphs 169 and 171), it being recalled that the Court of First Instance found an equivalence between the posts, the qualifications and the professional experience of the applicants and the actual members of the project team (paragraphs 121 and 122 of the interlocutory judgment). The classification to be determined at the start of the liability period must consequently take into account that functional similarity.

53     In order to determine the classification of each of the applicants at the start of the liability period, all the relevant evidence available mentioned by the parties must be used, namely, first, the memorandum of the Head of Contracts at JET of 25 August 1989, which established a correspondence between the grades of members of the contract staff and eight grades relating to staff of the EAEC, and the classification of members of the contract staff at JET as it appears in the register for such staff for the year 1994 and, secondly, the Commission decision of 11 October 1984 on criteria applicable to the classification by grade and step upon recruitment of scientific and technical staff and the Commission decision, which came into force 1 September 1983, concerning the criteria applicable to appointment in grade and classification in step on recruitment, as regards administrative staff.

54     Under those different documents, the classification of each of the applicants in grade and step at the start of the liability period is determined in the following way.

55     First, it is necessary to determine the classification of each applicant as a member of the contract staff on the effective date of the earliest contract concluded or renewed in the period selected, as can be established from the memorandum of the Head of Contracts at JET of 25 August 1989 and from the register of members of the contract staff at JET for the year 1994. Except in the case of a first recruitment, that classification as a member of the contract staff will take into account the evolution of the personal situation of the staff members concerned from their initial recruitment to the date of renewal of their contract starting the liability period, in accordance with the principles set out above.

56     Secondly, it is necessary to determine the corresponding grade and step of a member of staff of the EAEC equivalent to that classification, based on the Commission decision of 11 October 1984 on criteria applicable to the classification by grade and step upon recruitment of scientific and technical staff and the Commission decision, which came into force on 1 September 1983, concerning the criteria applicable to appointment in grade and classification in step on recruitment, as regards administrative staff.

57     Moreover, it is necessary to take formal note of the agreement of the parties concerning the classification of the 22 applicants concerned in the C 3‑B 5/B 3 career bracket and the fact that the qualification ‘Chartered Engineer’ entitles the holder to occupy a category A post. ‘Ordinary National Diploma’ and ‘City & Guilds Part III’ qualifications must also be held to give the holder access to category B posts, the applicants having adduced evidence from the competent United Kingdom authorities that these qualifications are at the level required for access to that category, which the defendant does not challenge.

58     In view of the foregoing the classification in grade and step of each of the applicants at the start of the liability period is to be determined as indicated in the third column of Annex 2 to the present judgment.

 Promotions

– Arguments of the parties

59     The applicants assert that promotion rates at JET were particularly favourable, which should in the present case imply, first, a move to the next higher grade on the first occasion the step increase takes the salary above step 1 in the next grade, except in three cases in respect of which they concur with the Commission’s position, namely, that it was impossible to be promoted from B to A grade, from A5 to A4 grade and from A4 to A3 grade. Secondly, allowance should be made for average career promotion by adding one promotion every five years.

60     The close correlation between the grades claimed by the applicants and the grades in the JET register of contract staff shows that the method proposed is a good one. It also allows appointment to a post of responsibility to be expressed as a promotion.

61     The Commission submits that a change of responsibilities does not automatically lead to a promotion, since no automatic link exists between grade and function and an official can move from the post of administrator to that of Group leader without promotion.

62     In reply to the measure of organisation of procedure, the parties indicated that they had come to an agreement on a rate of promotion of 20% corresponding to one promotion every five years and that two of the applicants – M. Browne and J. Tait – attained Grade A4 from 1998, when they became Group Leaders.

63     The Commission continues to disagree as to the way the applicants have applied that rate to the period prior to the liability period in accordance with their methodology, which consists of taking into account the career that they had had at JET before the liability period in order to determine the classification at the start of that period.

– Findings of the Court

64     At the outset it is necessary to state that the point of disagreement raised by the Commission relates not to the effect of the promotions from which the applicants would have benefited during the liability period at the rate agreed between the parties of 20% per annum but to the application of that rate in order to determine the initial classification of each, at the start of the liability period, by reconstructing, where appropriate, the earlier career of the party concerned at JET. Those criticisms concern therefore the determination of the grade and the step at the start of the liability period and are unrelated to the promotions during the period which is being reconstructed here.

65     As regards the taking into consideration of those promotions which took place before the liability period, which is thus not in issue here, it must nonetheless be observed, in the light of the defendant’s concerns, that it is clear that, since it has been found (see paragraph 50 et seq. above), in accordance with the grounds of the interlocutory judgment, that in order to determine the classification at the start of the liability period of each applicant it is necessary to take into account the career of the party concerned from this actual recruitment, that method of ‘career reconstruction’ must include the promotions from which he could have benefited. The parties having accepted that the rate of promotion at JET was 20%, the applicants were logically entitled to use that rate in order to make that initial ‘career reconstruction’, for the purpose of determining the grade and the step of each applicant at the start of the liability period.

66     As regards promotions during the liability period, the Court of First Instance held in the interlocutory judgment (paragraph 172) that the parties should agree on the reconstruction of the careers of each of the applicants from the date of recruitment or the start of the five‑year period for which damages are due, taking into account the average increase in salary for the equivalent post and grade of a member of the EAEC staff, working for JET if applicable, and any promotions the person concerned may have had during that period in the light of the grade and post selected, on the basis of the average number of promotions of members of the temporary staff of the EAEC in a comparable position.

67     It is clear from the interlocutory judgment that the reconstruction of the potential promotions during the liability period must be determined in the light of the grade and the step selected at the start of that period at the earliest, by applying the average promotions granted to members of the temporary staff of the EAEC in a comparable position, in other words working at JET, in accordance with the promotion practices in operation at JET.

68     In the light of the situation of the actual members of the project team at JET, the Court of First Instance considered that the applicants had been kept in a legal position in which they suffered discrimination constituting a culpable illegality (paragraphs 141 and 142 of the interlocutory judgment) and that they had, consequently, suffered loss (paragraphs 167 and 172 of the interlocutory judgment). Consequently, the ‘comparable position’ which must serve as the point of comparison in order to determine the career progressions from which the applicants would have benefited is that – where appropriate more favourable – of the actual members of the project team at JET.

69     Any access to posts entailing particular responsibility is not to be taken into account in that calculation since, as the Commission contends, no automatic link exists between grade and function and an official can change post without receiving a promotion. On the other hand, the reconstructed promotions must include changes of step and grade in accordance with the practices at JET.

70     It is therefore necessary to take into account, in accordance with the principles laid down by the interlocutory judgment, the reconstructed promotions based on the foregoing grounds in order to determine the net revenue that each applicant would have received as a member of the temporary staff during the liability period.

 Related benefits

– Arguments of the parties

71     The applicants claim that net revenue actually received by each of them must be calculated net of the amounts they earned when they worked during their leave or when they worked overtime, as if each of them had worked the same number of days as a member of the temporary staff of the EAEC in an equivalent position without working overtime. They argue that to take account of the amounts actually received by the applicants in this way (higher than those received by members of the temporary staff of JET) would cancel out any compensation in respect of paid leave and overtime.

72     The Commission contends that the sums received by the applicants for paid holidays and overtime because of the flexibility they enjoyed enabling them, unlike members of the temporary staff of the EAEC, to increase their income must be taken into account in calculating the income received by the persons concerned as members of the contract staff. As regards the determination of the Community income which each of them could have received, it points out that evidence must be adduced that the person concerned fulfilled the conditions for that part of the compensation corresponding to certain allowances, such as household allowance, child allowance and education allowance.

73     Concerning any missions undertaken by the applicants, the Commission claims that what is at issue is not the reimbursement of lost income but the reimbursement of expenses. Concerning daily allowances received by certain applicants who lived far away from the JET premises, the defendant contends that the Staff Regulations do not offer an equivalent advantage to members of the temporary staff and that the corresponding allowances must be treated for accounting purposes as income actually received as members of the contract staff.

74     Further to the measure of organisation of procedure, it is apparent that the parties came to an agreement on the following points.

75     As regards paid leave, it is permissible, in view of the fact that the majority of the applicants did not benefit from any, to include in the amounts received by the applicants as members of the contract staff the income they earned for having worked the same number of hours they would have worked if they had been members of staff of the EAEC.

76     Concerning overtime, the parties have agreed to distinguish the situations of the applicants according to whether they fall within category A or categories B and C. First, since members of the staff of the EAEC in category A, unlike the contract staff of which the applicants were members, were not paid for overtime performed, the applicants accept the 10% uplift applied by the Commission to their national income. Secondly, it is apparent that staff of the EAEC in category B and C received compensation for overtime not financially but by way of time off, which now proves impossible to calculate. Consequently, the applicants decided not to take overtime into account on either side of the equation (national income and Community income). The Commission however continued to apply the uplift of 10% uniformly to the income received by the applicants as contract staff. This therefore leads to a divergence in the assessment of that income in the figures submitted by the parties.

–       Findings of the Court

77     The Court of First Instance held in the interlocutory judgment (paragraph 167) that during the time spent working for the JET Joint Undertaking the applicants’ loss lies in the difference between the salaries, related benefits and pension rights which the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary staff and the salaries, related benefits and pension rights which they had actually received or acquired as members of the contract staff.

78     It follows from this, first, that in order to determine the net national income that each applicant would have received during the liability period if he had been recruited as a member of the temporary staff, it is necessary to take into account all the advantages to which the party concerned would have been entitled, having regard to the criteria concerning his personal and professional situation in respect of which he was able to provide written evidence. Conversely, it is not necessary to include the claims for expenses which would have been received for missions, the Commission contending in that regard, without being contradicted, that, at JET all subsistence costs were reimbursed, whilst there was little or no daily allowance.

79     Secondly, in order to determine the net national revenue received by each applicant as a member of the contract staff during the liability period, it is necessary to take into account the entire salary that the parties concerned received on that basis, in particular, the daily allowance which certain of the applicants may have received for having to commute to the JET premises.

80     As to paid leave, it is necessary to take into account the agreement reached by the parties and the sums received by the applicants for having worked a number of hours equivalent to the working hours which they would have had as staff of the EAEC.

81     As regards overtime, it is necessary to apply, as the parties have agreed, an uplift of 10% to the income received by the parties concerned as contract staff, inasmuch as members of the staff of the EAEC in category A were not paid for overtime worked, unlike members of the contract staff such as the applicants.

82     Concerning the applicants who are classified in category B or C, the Court of First Instance notes that the defendant is not contending that the applicants’ allegations – to the effect that staff of the EAEC in categories B and C received compensation for overtime not financially but by way of time off, the calculation of which now proves impossible – are incorrect. Against that background, the most appropriate solution is that submitted by the applicants, namely not to take the overtime into account for the purpose of determining either the income received by the applicants as members of the contract staff or the income which they would have been paid as members of the temporary staff of the EAEC.

83     Consequently, it is necessary for the Court of First Instance to take formal note of the net income which each applicant would have received as a member of the temporary staff in the course of the liability period and that which he actually received as a member of the contract staff in the course of the same period, in accordance with the principles stated above regarding the related benefits.

84     It follows from the foregoing that the amount of net income received by the members of the contract staff, the amount they should have received as members of the temporary staff, the amount of the loss resulting from the difference between these two amounts and the accrued amount of the loss resulting from the updating of that last amount to 31 December 1999 are those which appear in columns (1), (2), (3) and (4) respectively of Annex 3 to the present judgment.

 Pension rights

– Arguments of the parties

85     The applicants assert that they are entitled to compensation for loss of pension rights and that that cannot be replaced by a severance grant. They state that most of them worked at JET for a longer period than the five years maximum on the basis of which damages for each are to be calculated. They consider that the proper approach for determining the pension rights at issue is to calculate the cost of an annuity equivalent to the pension that they would have received if they had been treated in a lawful manner and to take into account the proportion of that sum corresponding to the liability period.

86     The Commission contends that the applicants are entitled to claim a severance grant only, since the Court of First Instance has held that the period of Community liability for non-recruitment giving rise to a duty to compensate is a maximum of five years. Granting pension rights in consideration of facts prior to that period, namely that some of the applicants were working beforehand at JET, which would require reliance on contracts concluded before the start of the liability period, would go against the limitation imposed by the Court of First Instance.

– Findings of the Court

87     The Court of First Instance held in the interlocutory judgment (paragraph 167) that, during the time spent working for the JET Joint Undertaking, the applicants’ loss includes the pension rights which correspond to the difference between the pension rights which the persons concerned would have acquired if they had worked for the JET project as members of the temporary staff and the pension rights which they actually received or acquired as members of the contract staff.

88     Moreover, the Court of First Instance held that damages must be calculated in respect of a period commencing on the effective date of the earliest contract concluded or renewed with the applicant in each case, that date being no more than five years before the submission of his request for compensation to the Commission and ending on the date on which the applicant concerned stopped working for the JET project if that was before the end of the project on 31 December 1999, or on that date if he worked for the JET project until its conclusion (paragraph 174 of the interlocutory judgment).

89     It is absolutely clear from the grounds of the interlocutory judgment that the Court of First Instance expressly recognised that the applicants were entitled to compensation in respect of pension rights. Thus, although it may have limited the admissibility of the claims for damages to a maximum period of five years from each applicant’s claim for damages, it is not to be inferred from this that that element in the damages should in all cases be replaced by a severance grant. The interpretation put forward by the Commission in that respect cannot consequently be upheld.

90     As pointed out at paragraph 50 above, the Court of First Instance in the interlocutory judgment held that, from the outset, the applicants should have been recruited as temporary staff and that the unlawful conduct lasted longer than the liability period. That finding necessarily entails account being taken of the fact that the applicants were able to acquire pension rights for the entire period that each of them actually worked at JET, but compensation for any such rights is limited to the liability period.

91     Consequently, in order to determine that part of the damages corresponding to pension rights, it is necessary to consider, for each of the applicants, the date of their first actual recruitment at JET, where appropriate before the liability period, the damages being due in respect of the loss of pension rights for a maximum of five years corresponding to the liability period. Those five years do not therefore constitute the only years of entitlement to rights. It is in fact the whole period of employment for each applicant at JET which entitles him to pension rights, the respective rights then being reduced in proportion to the ratio of the liability period to his total period of employment, in accordance with the grounds stated in the interlocutory judgment.

92     Moreover, it is necessary to consider whether the damages due in respect of pension rights may not be lower than the actuarial value of the reserves built up in the name of each applicant by workers’ and employers’ contributions in respect of the maximum of five years corresponding to the liability period.

93     Where, conversely, an applicant, because in particular he has worked at JET for fewer than 10 years, would not in any event, under the provisions of the Staff Regulations, be entitled to a service pension but only to a severance grant, compensation in respect of the loss of that grant, reduced in proportion to the ratio of the liability period to his total period of employment, constitutes the alternative which must necessarily be granted to him in accordance with the grounds of the interlocutory judgment. It is clear from the applicants’ replies to the measure of organisation of procedure that, in their claims at the final stage, those amongst them who have worked for less than 10 years at JET are seeking a severance grant in lieu of pension rights.

94     The foregoing assessment is not called into question by the factors which the Commission has relied on.

95     Although in its judgment in Case C‑262/88 Barber [1990] ECR I‑1889 the Court of Justice limited the temporal effects of the interpretation given to Article 141 EC owing to overriding considerations of legal certainty precluding the calling into question of legal situations which have exhausted all their effects in the past, that solution does not appear to be relevant to the present case.

96     The facts of the present case, concerning compensation for loss caused by the unlawful conduct by the Community towards the applicants, are not comparable to those of that previous case, which raised the problem of the retroactive revision of pension schemes throughout the territory of the Community with significant financial implications. Moreover, the defendant has not relied on any overriding considerations of legal certainty.

97     In addition, the Commission’s allegation, to the effect that no pension funds existed at JET for the period before the liability period and therefore granting pension rights to the applicants in respect of that earlier period would have the effect of according them an advantage from which staff of the EAEC employed by JET did not benefit, cannot be upheld either.

98     It follows from the combined provisions of Articles 2 and 39 of the Conditions of Employment of other servants of the European Communities, which governs, inter alia, staff of the EAEC, that members of the temporary staff have a right to a service pension or a severance grant subject to the conditions laid down in the Staff Regulations of Officials of the European Communities. Article 8.5 of the Statutes of the JET annexed to Council Decision 78/471/Euratom of 30 May 1978 on the establishment of the ‘Joint European Torus (JET), Joint Undertaking’ (OJ 1978 L 151, p. 10), in the version relevant for the determination of the applicants’ pension rights, expressly invokes the Conditions of Employment of other servants of the European Communities in respect of the staff recruited as members of the temporary staff, as the applicants should have been. Therefore, even if, in practice, the system provided for by the appropriate texts was not complied with for staff of the EAEC employed by JET, that regrettable fact cannot be relied on by the defendant in determining the damages due to the applicants as a result of its unlawful conduct towards them.

99     Furthermore, although the applicants have been claiming damages in respect of loss of pension rights from the lodging of their action in 2001 and the interlocutory judgment expressly held that such damages were recoverable in principle, it must be observed that the Commission has not adduced evidence of the accuracy of its allegation or submitted details as to the practical difficulties liable to result therefrom.

100   In view of the foregoing the damages payable to the applicants in respect of the loss of pension rights or, where appropriate, a severance grant in accordance with the grounds stated above, are to be determined as indicated in column 5 of Annex 3 to the present judgment. It is appropriate, as a matter of convenience, to mention under that heading the unemployment benefit to which two of the applicants were entitled, as indicated at paragraph 28 above.

 On the total amount of the damages due to each of the applicants

101   The Court of First Instance held in the interlocutory judgment (paragraph 167) that, during the time spent working for the JET Joint Undertaking, the applicants’ loss lies in the difference between the salaries, related benefits and pension rights which the persons concerned would have received or acquired if they had worked for the JET project as members of the temporary staff and the salaries, related benefits and pension rights which they actually received or acquired as members of the contract staff.

102   It follows from all the foregoing that the definitive amount of damages due to each of the applicants in compensation for the loss in question, as at 31 December 1999, the date which, in any event, concludes the liability period, is the total sum indicated in column 6 of Annex 3 to the present judgment. From that date, interest is to accrue on that sum at the rate of 5.25%, as indicated at paragraph 28 above, until the actual payment of the damages.

 Tax treatment of the applicants’ compensation

103   The parties have set out the problems liable to arise nationally in the context of the implementation of the present judgment, as a result of the intention of the United Kingdom tax authorities to tax, if not the principal, at least the interest accruing on the damages at issue in the present case, contrary to the terms of the interlocutory judgment.

104   It must be pointed out that the Court of First Instance has held that, since the damages due to each applicant were intended to compensate for loss of salary and related benefits assessed net of tax and calculated, according to the same rules, taking Community tax into account, they must benefit from the tax regime applicable to the sums paid by the Communities to their staff, pursuant to Article 16 of the Protocol on the Privileges and Immunities of Officials and Other Servants of the European Communities. The damages in question, thus interpreted as net of any taxation, cannot therefore be subject to deductions of national tax. No additional damages are therefore due by way of compensation for such deductions (paragraph 176 of the interlocutory judgment).

105   It follows from the interlocutory judgment that both the principal of the damages due to each applicant and the interest accruing thereon, which reflects the cost of the time taken to make good the damage to the parties concerned and is therefore inextricably linked to the principal, cannot in any case be subject to any deduction of national tax which would have the direct effect of reducing the compensation for that damage. Moreover, as is clear from the interlocutory judgment, the Community cannot be ordered to pay additional damages to the applicant, which would be unconnected with the unlawful conduct declared by the Court of First Instance, in order to compensate for the reduction of the damages finally retained by the parties concerned, owing to national tax decisions, such a payment being tantamount to an increase without due cause in the budget of a Member State.

106   Without there being any need to prejudge any of the procedural consequences, the expediency of which it is for the Commission to consider, to which the Member State concerned would be liable in such a case, the Court of First Instance can only confirm that the damages due to the applicants are entirely exempt from tax under national provisions, as regards both the principal and interest, an exemption which arises from the grounds of the interlocutory judgment, which has acquired the definitive status of res judicata, as indicated at paragraphs 26 and 28 above.

 Costs

 Arguments of the parties

107   The applicants, who claim that the Court of First Instance should order the Commission to pay their costs pursuant to Article 87 of the Rules of Procedure, state that, although the Court of First Instance has restricted the liability period, they have not failed on a distinct head of claim and their costs are not proportionate to the length of the liability period.

108   The Commission maintains that the applicants cannot claim to have won since they have been defeated on one of the essential issues, namely limitation, which has the effect of making a five or six-fold reduction in their original claims. It notes that the Court of First Instance devoted nearly one half of the interlocutory judgment to that question and it considers that one conceivable approach would be to order it only to pay one half of the applicants’ costs.

 Findings of the Court

109   It must be recalled that the costs of the proceedings were reserved by paragraph 4 of the operative part of the interlocutory judgment.

110   It follows from Article 88 of the Rules of Procedure, which applies to the present case, that, since the dispute was dealt with under the heading of litigation in disputes between the Community and its staff (paragraph 54 of the interlocutory judgment), in that context, without prejudice to the second subparagraph of Article 87(3), the institutions are to bear their own costs.

111   Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court of First Instance may order that costs be shared or that each party bear its own costs.

112   Moreover, Article 87(4) of the Rules of Procedure provides that the Member States and institutions which intervened in the proceedings are to bear their own costs.

113   It must be observed that, as is apparent both from the operative part of the interlocutory judgment and from the grounds set out in support thereof, the applicants have essentially been successful. The Court of First Instance has recognised their right to compensation for the damage suffered by each of them on account of the fact that they were not recruited as a members of the temporary staff of the Communities for the time they worked at the JET Joint Undertaking. Hence, the point made by the defendant – that the Court of First Instance limited the liability period – in no way mitigates the finding of full responsibility on the part of the Community for the unlawful conduct, which was found for the entire period during which the applicants worked at JET.

114   Furthermore, even though the applicants’ claims for compensation have been partly unsuccessful, inasmuch as the Court of First Instance has not upheld all the claims in respect of the damage at issue, the fact remains that all the applicants have obtained compensation greater than that which the Commission was willing to grant them (see Mulder and Others v Council and Commission, paragraphs 363 to 365).

115   It is necessary, in those circumstances, to order that, in respect of the entire proceedings before the Court of First Instance, the Commission is to bear its own costs and pay those of the applicants and that the Council, as intervener, is to bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby:

1.      Orders the Commission to pay to each of the applicants damages corresponding to the sum indicated for each of them in column 6 of Annex 3 to the present judgment;

2.      Orders that that sum shall bear interest at the rate of 5.25% from 31 December 1999 until actual payment;

3.      Orders the Commission to bear its own costs and to pay the costs of the applicants incurred in respect of the entire proceedings before the Court of First Instance;

4.      Orders the Council to bear its own costs.

Vesterdorf

Jaeger

Legal

Delivered in open court in Luxembourg on 12 July 2007.

E. Coulon

B. Vesterdorf

Registrar

President

Annex 1

List of Applicants (95)

Ashby

Ashman

Atkins

Austin

Bainbridge

Baker

Barlow

Boyce

Bracey

Brown B

Browne M

Bruce

Butler

Carman

Clapinson

Clay

Downes

Evans G

Evans J

Gallagher

Gear

Gedney

Grey

Grieveson

Haist

Hamilton

Handley

Harrison

Hart

Haydon

Hayward

Hopkins

Howard

Howarth

Hume

Jones E

Jones G

Lawler

MacMillan

Martin

May C

May D

Merrigan

Middleton

Mills

Musselwhite

Napper

Nicholls

Organ

Page

Parry

Parsons

Pledge

Potter

Preece

Price

Richardson

Rivers‑Playle

Rolfe

Russell

Sanders S

Sanders SG

Scott

Shaw

Sibbald

Skinner

Smith PG

Smith T

Spelzini

Stafford‑Allen

Stagg

Stanley

Starkey

Sutton

Tait

Taylor

Tigwell

Toft

Tulloch

Twynam

Walden

Walker

Wallace

Walsh

Watkins

Way

West

Whitby

Wijetunge

Willis

Wilson DJ

Wilson DW

Wright

Yorkshades

Young

Annex 2

Name of applicant

Start of the liability period

Grade and step at the start of the liability period

Ashby

1 January 1995

B 1/4

Ashman

1 March 1995

B 2/2

Atkins

1 January 1995

A 6/1

Austin

1 January 1995

C 2/3

Bainbridge

1 June 1995

A 6/2

Baker

1 January 1995

B 1/8

Barlow

1 January 1995

B 1/2

Boyce

1 January 1995

B 2/1

Bracey

12 January 1995

B 1/6

Brown B

1 January 1995

B 1/8

Browne M

1 February 1995

A 5/8

Bruce

1 February 1995

B 2/4

Butler

1 January 1995

B 3/4

Carman

1 January 1995

B 1/4

Clapinson

1 January 1995

B 1/8

Clay

1 January 1995

B 1/7

Downes

1 January 1995

B 2/3

Evans G

1 January 1995

B 1/5

Evans J

1 January 1995

B 1/5

Gallagher

1 May 1995

B 1/8

Gear

2 July 1995

B 4/4

Gedney

1 January 1995

B 1/4

Grey

1 January 1995

B 1/8

Grieveson

1 November 1995

B 2/1

Haist

1 January 1995

A 6/3

Hamilton

1 January 1995

A 6/2

Handley

1 January 1995

B 2/1

Harrison

1 March 1995

B 2/1

Hart

31 March 1995

B 2/4

Haydon

1 August 1995

B 1/2

Hayward

1 January 1995

B 1/8

Hopkins

1 January 1995

B 1/4

Howard

1 January 1995

B 1/8

Howarth

1 January 1995

B 2/4

Hume

1 April 1997

B 2/2

Jones E

1 April 1995

B 1/2

Jones G

1 May 1995

B 1/4

Lawler

3 May 1995

A 5/3

MacMillan

1 January 1995

B 1/4

Martin

1 January 1995

B 1/2

May C

1 August 1995

B 3/4

May D

18 April 1995

B 2/3

Merrigan

1 May 1995

B 3/4

Middleton

6 March 1995

A 5/1

Mills

1 May 1995

A 5/8

Musselwhite

1 January 1995

B 2/1

Napper

1 January 1995

B 2/1

Nicholls

1 January 1995

B 1/3

Page

1 January 1995

B 1/4

Parry

1 January 1995

B 1/3

Parsons

1 May 1995

A 5/4

Pledge

1 January 1995

B 1/4

Potter

1 January 1995

B 1/3

Preece

19 June 1995

B 4/2

Price

1 January 1995

B 1/4

Richardson

1 March 1995

B 2/3

Rivers‑Playle

1 April 1996

D 3/2

Rolfe

1 February 1995

A 4/8

Russell

1 March 1995

B 1/3

Sanders S

1 April 1995

B 3/2

Sanders SG

1 January 1995

A 5/4

Scott

6 January 1995

B 3/4

Shaw

1 February 1995

B 1/4

Skinner

1 May 1995

B 2/2

Smith PG

1 May 1995

B 1/2

Smith T

1 January 1995

B 3/3

Spelzini

1 January 1995

B 2/4

Stafford‑Allen

1 April 1995

A 5/3

Stagg

1 June 1995

A 5/6

Stanley

1 April 1995

B 4/3

Starkey

1 January 1995

A 6/2

Sutton

1 January 1995

B 3/4

Tait

1 November 1995

B 1/4

Taylor

1 April 1995

B 2/2

Tigwell

1 January 1995

B 1/5

Toft

1 January 1995

B 2/4

Tulloch

1 June 1995

B 2/1

Twynam

1 January 1995

A 5/8

Walden

1 January 1995

A 5/7

Walker

1 January 1995

B 2/2

Wallace

1 January 1995

B 3/4

Walsh

1 January 1995

B 1/8

Watkins

1 January 1995

B 1/8

Way

1 January 1995

B 1/5

West

1 October 1995

B 3/4

Whitby

1 January 1995

B 2/4

Wijetunge

1 January 1995

B 1/3

Willis

1 January 1995

B 2/2

Wilson DJ

1 May 1995

A 5/4

Wilson DW

1 April 1995

B 3/3

Wright

1 January 1995

C 1/6

Yorkshades

31 July 1995

B 2/1

Young

16 January 1995

B 1/4

Annex 3

Name of applicant

Total income received as a member of the contract staff (1)

National income

(GBP)

Total net income of an equivalent member of the temporary staff (2)

Community income

(GBP)

Difference: simple net loss

(3 = 2 - 1)

(GBP)

Difference: accrued net loss

(4 = 3 updated to 31 December 1999)

(GBP)

Loss of service pension (or severance grant) +, where appropriate, unemployment benefit (5)

(GBP)

Total loss as at 31 December 1999

(6 = 4 + 5)

(GBP)

Ashby

130 241

221 535

91 294

100 375

192 027

292 401

Ashman

74 905

166 244

91 339

99 773

43 647

143 420

Atkins

139 741

238 403

98 662

107 830

48 050

155 880

Austin

56 991

126 224

69 233

76 018

31 194

107 211

Bainbridge

86 407

161 292

74 885

83 289

15 557

98 846

Baker

141 265

240 123

98 858

109 525

177 809

287 334

Barlow

124 685

230 699

106 014

116 339

52 718

169 057

Boyce

85 014

176 158

91 145

99 873

124 135

224 007

Bracey

82 044

206 021

123 976

135 884

163 221

299 105

Brown B

132 086

299 845

167 759

185 165

184 781

369 946

Browne M

197 775

290 026

92 250

103 268

136 666

239 935

Bruce

96 829

273 189

176 360

192 718

60 556

253 274

Butler

79 686

173 660

93 974

103 308

79 778

183 085

Carman

145 150

233 290

88 140

97 480

152 453

249 933

Clapinson

121 921

218 248

96 327

106 541

203 431

309 973

Clay

129 801

265 631

135 830

150 347

158 431

308 779

Downes

117 129

210 762

93 632

102 374

121 201

223 575

Evans G

73 566

248 627

175 061

192 018

141 165

333 184

Evans J

125 013

286 433

161 419

177 490

158 431

335 921

Gallagher

108 878

238 044

129 166

141 649

179 225

320 874

Gear

62 054

165 185

103 131

111 768

34 077

145 845

Gedney

111 391

201 693

90 302

99 087

164 593

263 680

Grey

131 095

261 486

130 391

144 034

184 781

328 815

Grieveson

89 710

165 150

75 440

81 096

36 386

117 483

Haist

137 162

270 098

132 936

145 846

54 146

199 992

Hamilton

68 752

137 679

68 928

76 973

20 429

+ 9 254

106 657

Handley

99 803

210 536

110 733

120 698

45 181

165 879

Harrison

69 257

174 519

105 262

114 884

147 207

262 091

Hart

78 363

224 136

145 772

158 112

153 615

311 727

Haydon

80 000

207 028

127 027

138 023

48 130

186 153

Hayward

131 015

258 144

127 129

140 446

184 781

325 227

Hopkins

65 486

125 416

59 929

69 620

32 412

102 031

Howard

99 629

237 913

138 283

152 547

211 408

363 955

Howarth

79 800

220 085

140 285

154 223

109 733

263 956

Hume

52 126

121 377

69 251

72 243

24 015

96 258

Jones E

59 227

192 238

133 011

145 101

129 770

274 871

Jones G

71 500

249 345

177 845

193 568

165 605

359 173

Lawler

68 730

128 743

60 012

69 116

65 862

134 978

MacMillan

121 329

212 844

91 515

100 689

92 142

192 831

Martin

130 727

216 603

85 876

94 741

162 412

257 153

May C

104 466

138 630

34 163

36 835

77 944

114 779

May D

74 803

178 980

104 178

113 695

57 332

171 027

Merrigan

108 107

182 196

74 089

80 117

97 918

178 035

Middleton

172 567

232 437

59 869

64 880

57 815

122 695

Mills

177 809

242 033

64 224

71 667

178 566

250 233

Musselwhite

111 539

227 126

115 587

127 577

158 254

285 831

Napper

67 017

201 685

134 667

147 989

36 436

184 425

Nicholls

79 159

207 443

128 284

141 468

61 434

202 902

Page

91 825

241 553

149 728

163 731

149 503

313 234

Parry

99 210

223 866

124 655

136 539

149 110

285 649

Parsons

155 422

271 874

116 452

127 752

177 524

305 276

Pledge

111 220

212 844

101 624

111 105

206 944

318 049

Potter

29 665

48 297

18 632

22 329

6 699

29 027

Preece

72 369

88 576

16 208

18 058

17 997

36 055

Price

119 511

195 068

75 556

83 455

88 421

+ 20 404

192 280

Richardson

124 313

188 507

64 194

69 610

53 133

122 743

Rivers‑Playle

29 747

69 948

40 202

42 969

14 812

57 782

Rolfe

247 601

390 887

143 286

158 212

228 949

387 161

Russell

68 108

208 170

140 062

153 428

144 140

297 568

Sanders S

115 996

157 096

41 101

44 627

37 137

81 764

Sanders SG

146 352

315 672

169 320

185 733

67 780

253 513

Scott

66 865

169 720

102 854

113 622

120 030

233 653

Shaw

79 404

217 076

137 672

150 933

220 231

371 165

Skinner

124 852

213 489

88 637

96 115

98 200

194 315

Smith PG

125 770

177 863

52 094

56 457

123 707

180 164

Smith T

79 341

169 426

90 086

99 297

87 930

187 227

Spelzini

86 280

201 903

115 624

126 833

107 642

234 476

Stafford-Allen

50 407

140 309

89 902

97 751

21 152

118 903

Stagg

117 358

258 629

141 270

153 397

150 142

303 540

Stanley

90 323

134 101

43 778

47 436

33 512

80 948

Starkey

166 303

212 171

45 868

50 027

151 261

201 289

Sutton

36 813

108 580

71 767

81 219

15 734

96 953

Tait

121 790

173 160

51 370

55 094

168 898

223 992

Taylor

68 819

180 446

111 627

121 505

101 894

223 399

Tigwell

133 215

266 550

133 335

146 385

155 414

301 799

Toft

62 458

210 341

147 883

162 114

144 078

306 192

Tulloch

61 440

112 213

50 773

56 835

115 114

171 948

Twynam

115 388

272 347

156 960

173 380

236 393

409 774

Walden

135 796

282 686

146 890

161 689

202 683

364 372

Walker

84 893

231 965

147 072

161 465

48 402

209 867

Wallace

64 766

147 993

83 227

91 230

38 838

130 068

Walsh

131 125

240 123

108 998

120 805

184 781

305 586

Watkins

132 413

240 123

107 710

119 396

215 513

334 910

Way

142 667

278 237

135 569

149 648

164 644

314 291

West

59 445

151 241

91 796

99 443

71 839

171 281

Whitby

107 244

243 356

136 113

148 728

134 396

283 123

Wijetunge

111 181

239 653

128 472

140 345

198 970

339 315

Willis

124 289

184 913

60 624

66 216

120 376

186 592

Wilson DJ

130 907

250 709

119 802

130 596

143 676

274 272

Wilson DW

112 222

181 198

68 976

75 234

37 918

113 152

Wright

72 261

164 076

91 815

100 891

85 607

186 498

Yorkshades

126 132

196 207

70 075

75 609

113 137

188 746

Young

140 516

247 755

107 240

117 362

65 253

182 615

---

* Language of the case: English.