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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 25 JUNE 1981 1
Hugues Desmedt v Commission of the European Communities
(preliminary ruling requested by the Tribunal du Travail, Brussels)
"Contract as a member of the local staff and Staff Regulations"
Case 105/80
Officials — Staff Regulations — Conditions of Employment of Other Servants — Distinct fields of application — Appointment of member of the local staff as probationary official — End of previous employment relationships
The Staff Regulations and the Conditions of Employment of Other Servants each cover a clearly defined range of persons and it is not possible, except where there is an express derogation, for a servant to come simultaneously within the scope of both of those acts laid down by regulation.
It follows from those considerations that a member of the local staff who accepts an appointment as a probationary official is subject to the Staff Regulations alone, the application of which automatically terminates the relationship formerly governed by the Conditions of Employment of Other Servants without its being necessary for the employment relationships thereunder to be terminated expressly by the administration.
In Case 105/80
REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail [Labour Tribunal], Brussels, for a preliminary ruling in the action pending before that court between
1 — Language of the Case: French.
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H U G U E S DESMEDT, a clerical worker , residing in Hennuyères (Belgium),
and
COMMISSION OF THE EUROPEAN COMMUNITIES,
on the relationship between the status of a probationary official within the meaning of Articles 1 and 34 of the Staff Regulations of Officials of the European Communities and that of a member of the local staff within the meaning of Articles 4, 79, 80 and 81 of the Conditions of Employment of Other Servants of the European Communities,
THE COURT (Second Chamber)
composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure and the observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I — Facts and w r i t t e n p r o c e d u r e
On 19 August 1974 Mr Hugues Desmedt, a Belgian national, entered the
service of the Commission of the European Communities in Brussels as a member of the local staff to perform the duties of a storekeeper in the Library Division of the Translation, Documentation, Reproduction and Library Directorate under a contract of employment (manual worker) signed on 12 August 1974 and concluded for a period of six months. Mr D e s m e d t ' s contract of employment as a member of the local staff was renewed on 13 February 1975
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for an indefinite period. By an amendment to the terms of his contract, Mr Desmedí was affiliated, as from 1 July 1976, to the "clerical worker" scheme of the Belgian National Social Security Office.
Following his participation in Internal Competition No COM/C/8/75, based on qualifications and tests, organized in order to constitute a reserve for future recruitment of clerical assistants in Career Bracket C 5/C 4, Mr Desmedt was entered, on 8 June 1976, on the list of suitable candidates for: "Accounts, Storekeeping" and "General Office Duties."
By decision of 7 January 1977, Mr Desmedt was appointed as a probationary official, in the capacity of clerical assistant, in Grade C 5, with effect from 1 January 1977. He was assigned to a post of operator at the Computer Centre in Luxembourg.
By note of 12 May 1977, the Director of Personnel and Administration in Luxembourg drew Mr Desmedťs attention to the need for a considerable improvement in his diligence and conduct in the service since an initial assessment of his performance at the Computer Centre during the probationary period had been unfavourable.
According to the report drawn up at the expiry of the probationary period pursuant to Article 34 (2) of the Staff Regulations on 6 June 1977 in relation to the work carried out by Mr Desmedt in his capacity as "an operator of peripheral units of computers at the Computer Centre," his initiative, sense of responsibility, speed in the performance of his duties and punctuality were found to be inadequate. In the final part of the report, Mr Desmedťs immediate superior recommended his dismissal on the ground that he did not appear to be "motivated for the work in question during his probationary period".
In his comments on the report, Mr Desmedt took the view that "the assessments made do not reflect the true state of affairs" and pointed out that he had previously expressed the wish to be posted to Brussels.
Ón 28 June 1977, the Head of the Personnel Division, acting as appointing authority, decided to dismiss Mr Desmedt pursuant to the first subparagraph of Article 34 (2) of the Staff Regulations, with effect from 1 July 1977.
Mr Desmedt was informed on 15 July 1977 that following an examination by the Commission's "mediator" of the decision of 28 June to dismiss him, the decision was upheld and the date on which it was to take effect deferred to 16 July 1977.
On 15 September 1977, Mr Desmedt submitted a complaint to the Commission pursuant to Article 90 (2) of the Staff Regulations against the decision to dismiss him. In that complaint he pointed out in particular that
"at no time has it been stated, either orally or in writing, that this trial period as a probationary official would cause me to lose my rights to the contract for an indefinite period as a member of the local staff.
With that certainty, I accepted the post which I was offered . . . ".
By letter of 20 March 1978, the Member of the Commission with responsibility for staff matters notified Mr Desmedt of the rejection of his complaint. That letter contained inter alia the following observation:
"Your appointment as a probationary official on 1 January 1977, which you accepted, necessarily entailed the premature termination of your contract of employment governed by private law since the status of a member of the local
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staff is incompatible with that of a public servant of an institution of the European Communities. It was therefore unnecessary for either party to observe the period of notice of one month, in the case of the employer, or of 15 days, in the case of a member of the local staff, provided for in Article 24 (2) of the Rules laying down the conditions of employment of local staff of the Commission of the European Communities serving in Brussels. On the expiry of your probationary period you also received compensation for dismissal as provided for in the fourth subparagraph of Article 34 (2) of the Staff Regulations."
Meanwhile, on 15 December 1977 Mr Desmedt had instituted proceedings against the Commission before the Tribunal du Travail [Labour Tribunal], Brussels, in which his main contention was that his appointment as a probationary official had merely suspended his contract as a member of the local staff with the result that the Commission was under an obligation to reinstate him in his former post or, failing that, to pay him damages in lieu of notice estimated at BFR 228 930, equivalent to six months’ remuneration.
By judgment of 20 March 1980, the 18th Chamber of the Tribunal du Travail, Brussels, decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following question:
"Is the status of a probationary official of the European Communities, subject to the Staff Regulations of Officials published in the Official Journal of the European Communities of 28 September 1972, C 100, pp. 5 to 32 and in particular Article 34 (8) thereof, compatible or incompatible with that of a
member of the local staff, subject to the private law of national legislation, as published in the same Official Journal of 28 September 197.2, C 100, p. 80, Articles 79 to 81, that is, in the present case, as regards Belgian legislation, Article 37 of the Law of 3 July 197« and the former Article 14 of the Consolidated Laws on Employment?"
The judgment of the Tribunal du Travail, Brussels, was received at the Court Registry on 28 March 1980.
In accordance with Article 20 of the Proctocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 16 May 1980 on behalf of Mr Hugues Desmedt, the plaintiff in the main action, represented by Xavier Xhardez of the Brussels Bar, and on 21 May 1980 by the Commission of the European Communities, the defendant in the main action, represented by Raymond Baeyens, Principal Legal Adviser, acting as Agent.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
By order of 16 September 1980, the Court decided, pursuant to Article 95 (1) and (2) of its Rules of Procedure, to assign this case to the Second Chamber.
II — W r i t t e n o b s e r v a t i o n s u b m i t t e d to the C o u r t
Hugues Desmedt, the plaintiff in the main action, submitted observations which may be summarized as follows :
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(a) It is not disputed that local staff are subject to the law of the place of employment, in the present case Belgian legislation on contracts of melpoyment, and that in his capacity as a probationary official he was himself subject to the Staff Regulations of the European Communities which have been complied with as regards the termination of his contract as a probationary official.
(b) The problem raised in the present case is not therefore that two different kinds of status actually overlap but rather that the status as a member of the local staff is placed in abeyance during the trial period as an official.
(c) It is common ground that under Belgian law a contract of employment may be broken by the employer only if he complies with certain procedures and by giving notice or paying appropriate compensation in lieu thereof. Belgian law also prohibits the conclusion of contracts for a trial period following entry into service. In their decisions, however, the courts have tempered that principle, taking the view that a contract for a trial period in a new post is permissible provided that during that trial period the pre-existing contract is merely suspended, so that it again takes effect forthwith if the trial period in the new post proves to be abortive.
(d) Since Mr Desmedt was subject to the status of a member of the local staff, his contract was governed exclusively by the provisions of Belgian law. His appointment as a probationary official was not accompanied by any express premature termination of his contract as a member of the local staff. That contract therefore continued to exist in spite of his appointment and the change of status resulting therefrom.
According to the principles of Belgian law, a trial period in a new post in the service of the same employer could only have entailed a suspension of. the contract as a member of the local staff until a definitive appointment was made to the new post. There cannot therefore be any incompatibility between the existence of the status, put into abeyance, as a member of the local staff and the status of an official of the Communities since the two do not overlap.
(e) In reply to the question submitted by the Tribunal du Travail, Brussels, the Court should rule that:
In so far as, under the legislative provisions of national law, the contract as a member of the local staff is suspended during the trial period as a probationary official, there is no incompatibility between the existence of the contract as a member of the local staff, which is placed in abeyance, and the status of a probationary official of the European Communities.
The Commission, the defendant in the main action, points out in relation to the question submitted to the Court that the only problem arising at Community level concerns the status of an official (Article 1 of the Staff Regulations) and that of a member of the local staff (Article 4 of the Conditions of Employment of Other Servants). All references to Belgian law should be disregarded. The answer to the question concerns only the rules of Community law applicable to the European public service.
In this regard, the following observations should be made :
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(a) According to the first paragraph of Article 4 of the Conditions of Employment of Other Servants, local staff, means staff "engaged according to local practice". Title IV of the Conditions defines the special conditions applicable to local staff by stating that their conditions of employment, in particular as regards the manner of their engagement and termination of their contract, their leave and their remuneration are to be determined by each institution in accordance with current rules and practice in the place where they are to perform their duties (Article 79), that as regards social security, the institution is to be responsible for the employer's share of the social security contributions under current regulations in the place where the servant is to perform his duties (Article 80) and that any dispute between the institution and a member of the local staff is to be submitted to the competent court in accordance with the laws in force in the place where the servant performs his duties (Article 81). Furthermore, under Article 2 of Regulation No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities members of the local staff are not liable to the tax in question.
National law admittedly plays a decisive part in determining the legal rules applicable to local staff. None the less, in formal terms, the conditions of employment, in particular those governing the engagement and dismissal of such staff, are the subject of Community rules drawn up by each institution.
Thus on 14 May 1971, the Commission adopted certain "Rules laying down the conditions of employment of local staff of the Commission of the European
Communities serving in Brussels". These rules are expressly referred to in Article 3 of every contract of employment concluded between the Commission and a member of the local staff engaged to work in Brussels.
(b) It follows from the case-law of the Court that the conditions of employment of officials and servants other than local staff are determined by the Staff Regulations or by the Condtions of Employment and that the disputes which they occasion come within the exclusive jurisdiction of the Court whereas the conditions of employment of local staff are determined on the basis of national law and are capable of forming the subject-matter of proceedings before national courts.
That distinction is justified by the difference in nature between contracts governed by private law to which a member of the local staff is a party and the conditions of employment governed by public law which are applicable to officials and to temporary or auxiliary staff.
(c) It also follows from the case-law of the Court that the procedure for dismissing an official on the ground of an unfavourable report at the end of the probationary period is governed by Article 34 (2) of the Staff Regulations and that a decision taken in accordance with that provision cannot give rise to any responsibility on the part of the Commission in regard to dismissed probationary officials.
The Staff Regulations define the factors which determine the career of an official. The probationary period, six months in the case of Category C staff, may, in the event of incompetence, lead to dismissal
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under Article 34 (2). That provision constitutes an additional manner in which service may be terminated, within the meaning of Article 47, but coupled with a grant of specific compensation normally equivalent to two months' basic salary. Mr Desmedt obtained such compensation for dismissal.
(d) The probationary period, which is compulsory under the Staff Regulations, may not, from a logical point of view, have the effect of suspending a contractual relationship governed by private law which is broken solely because the person concerned becomes subject to a system of rules governed by public law, that is to say Community law, which precludes the application of national private law.
(e) The question submitted by the Tribunal du Travail, Brussels, should be answered as follows:
The status of an official of the European Communities, whether probationary or established, is incompatible with that of a member of the local staff inasmuch as the relationship between the latter and his employer is contractual in nature and accordingly subject to national law.
I I I — O r a l p r o c e d u r e
Hugues Desmedt, the plaintiff in the main action, represented by Xavier Xhardez, and the Commission, the defendant in the main action, represen
ted by Raymond Baeyens, assisted by Jean-Marie De Smet of the Brussels Bar, submitted oral argument and answered questions put by the Court at the sitting on 12 march 1981.
Mr Desmedt pointed out that under Article 24 (b) of the Rules laying down the conditions of employment of local staff of the Commission serving in Brussels, a contract for an indefinite period normally ends by written notice of termination. That provision gave no justification for holding that there was an implied termination arising as a result of passing from a status governed by the conditions of employment of local staff to the status of a probationary official, the less so since under Belgian law a transfer to another post in the service of the same employer entails, during the trial period, the retention of the rights acquired in the previous post. This was confirmed by the fact that Mr Desmedt was recruited as an official following his participation in an internal competition for which he would not have been eligible if his contract as a member of the local staff had been prematurely terminated beforehand. Finally, the fact that his engagement was considered to have taken effect on 12 August 1974 and to have continued, within the same institution, beyond 1 January 1977, showed that there had been no termination of the contract of employment, even by implication, but merely a termporary amendment of the contract rendering it subject to the contingency of a favourable report at the expiry of the probationary period.
The Commission contended that in the present case there was an overlap of two quite distinct legal situations and that the decision to exchange his contract as a member of the local staff for the status of an official was taken on his own initiative by the plaintiff in the main
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action himself. A contract of employment might, under Belgian law, be terminated without notice by joint agreement between the parties. In this case, the contract was terminated by implication
since the Commission did not require of Mr Desmedt any period of notice.
The Advocate General delivered his opinion at the sitting on 21 May 1981.
Decision
1 By judgment of 20 March 1980, which was received at the Court Registry on 28 March 1980, the Tribunal du Travail [Labour Court], Brussels, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question which seeks to ascertain the relationship between the Staff Regulations of the European Communities (hereinafter referred to as “the Staff Regulations”) and, more particularly, Article 34 thereof, and the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as “the Conditions of Employment”) and, more particularly, Articles 79 to 81 thereof (codified text, which is not authentic, published in the Official Journal of 28 September 1972, C 100).
2 This question was submitted in connexion with an action pending before the Tribunal du Travail between the Commission of the European Communities and a former member of the local staff who was appointed as a probationary official and dismissed at the end of his probationary period.
3 It is apparent from the file on the case, including the personal file of the plaintiff in the main action, that he was engaged by the Commission as a member of the local staff in Brussels on 19 August 1974, initially for a period of six months. Upon the expiry of that period, the administration notified the plaintiff that it had decided to renew his contract for an indefinite period in spite of the fact that his performance was unsatisfactory. It also gave warning that there would have to be a considerable improvement in his work, failing which the administration would be obliged to reconsider his position and the continuance of his activities in the service of the Commission.
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4 The renewed contract of employment for an indefinite period was signed on 13 February 1975 by both parties. The service assessments in relation to the plaintiff drawn up in 1975 and 1976 show, albeit with some reservations, that his work was in general satisfactory.
5 At the time, the plaintiff participated successfully in an internal competition (COM/C/8/75) following which he was appointed on 7 January 1977, with effect from 1 January of the same year, as a probationary official in the capacity of clerical assistant in Grade C 5 and assigned to the Directorate General for Personnel and Administration in Luxembourg. An internal memorandum of 7 February 1977 states that "the contract as a member of the local staff under which Mr Hugues Desmedt was employed in the service of the Commission in Brussels has been terminated with effect from the evening of 31 December 1976". That memorandum was forwarded, inter alia, to the department in which the plaintiff was working.
6 Following an unfavourable assessment in the report drawn up at the end of the probationary period, the appointing authority decided on 28 June 1977 to dismiss the plaintiff with effect from 1 July 1977. It appears from the file on the case that the plaintiff received compensation for dismissal, as provided for in the fourth subparagraph of Article 34 (2) of the Staff Regulations, which is the equivalent of two months' basic salary in the case of a probationary official who has completed at least six months' service. The Commission had also, with the intention, amongst other things, of enabling the plaintiff to become affiliated once again to a national social security scheme, offered him a contract, involving his being posted to Brussels, as an auxiliary servant for a period strictly limited to three months. However, that offer was rejected by the plaintiff.
7 Finally, it should be noted that the plaintiff submitted on 15 September 1977 a complaint against his dismissal which was rejected by the Commission by letter of 20 March 1978. In that letter, the Commission stated in particular that "your appointment as a probationary official on 1 January 1977, which you accepted, necessarily entailed the termination of your contract of employment governed by private law since the status of a member of the local staff is incompatible with that of a public servant of an institution of the European Communities". The plaintiff did not avail himself of the further means of redress provided for in the Staff Regulations against the rejection of his complaint.
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8 By a writ dated 15 December 1977, Mr Desmedt had meanwhile instituted proceedings before the Tribunal du Travail, Brussels, for an order requiring the Commission to pay him damages for breach of contract. In the document initiating the proceedings, he claims that the Commission should either have reinstated him in his former post or paid him damages in lieu of notice estimated at BFR 228 930, equivalent to six months' salary calculated by reference to his last salary.
9 In support of his application, Mr Desmedt states that his appointment as a probationary official merely suspended his contract as a member of the local staff and that the contract should therefore again have taken effect following his dismissal as a probationary official. He compares his situation to that of a worker under a contract of employment in the private sector who is assigned to new duties for a trial period and he requests the national court to provide him with the same degree of protection as that which the courts would afford him if the succeeding contracts had been concluded in the private sector.
10 The Commission points out that the effect of an appointment as a probationary official is to make the employee subject to the Staff Regulations and necessarily terminates his contract as a member of the local staff which is governed by the Conditions of Employment.
1 1 To resolve this dispute, the Tribunal du Travail has submitted the following questions to the Court:
"Is the status of a probationary official of the European Communities, subject to the Staff Regulations of Officials published in the Official Journal of the European Communities of 28 September 1972, C 100, pp. 5 to 32, and in particular Article 34 (8) thereof, compatible or incompatible with that of a member of the local staff, subject to the private law of national legislation, as published in the same Official Journal of 28 September 1972, C 100, p. 80, Articles 79 to 81, that is, in the present case, as regards Belgian legislation, Article 37 of the Law of 3 July 1978 and the former Article 14 of the Consolidated Laws of Employment?"
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12 The relationship between the Staff Regulations and the Conditions of Employment of Other Servants and the determination of their respective fields of application must be defined on the basis of the provisions upon which the system governing the European public service is founded.
13 It is apparent from Article 24 (1) of the Treaty establishing a Single Council and a Single Commission of the European Communities of 8 April 1965 as well as from the preamble to Regulation No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (Official Journal, English Special Edition, 1968 (I), p. 30), adopted pursuant to the above-mentioned provision, that the Staff Regulations and the Conditions of Employment constitute two complementary acts inasmuch as each governs specific categories of servants: the Staff Regulations apply to officials stricto sensu and to probationary officials whilst the Conditions of Employment apply to a number of other categories of servants including local staff. It is thus apparent that the Staff Regulations and the Conditions of Employment each cover a clearly defined range of persons and that accordingly it is not possible, except where there is an express derogation, for a servant to come simultaneously within the scope of both of those acts laid down by regulation.
1 4 It follows from those considerations that a member of the local staff who accepts an appointment as a probationary official is subject to the Staff Regulations alone, the application of which automatically terminates the relationships formerly governed by the Conditions of Employment without its being necessary for the employment relationships thereunder to be terminated expressly by the administration.
15 The situation might be different only where the administration takes an express decision to the contrary. It is necessary to add, moreover, that there is nothing to prevent the administration from reinstating in his former position, upon the expiry of the probationary period, a servant formerly subject to the Conditions of Employment but the post would then be a new one and thus there would be no resumption of the previous employment relationship.
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16 It should also be observed that although the probationary period undoubtedly involves a measure of insecurity for the probationary official, he is none the less protected against any arbitrary dismissal by the means of redress provided for in Articles 90 and 91 of the Staff Regulations. In comparative terms, his position in that regard is no more insecure than that of a member of the local staff who may be dismissed at any time for incompetence subject to compliance with the appropriate procedures and time-limits.
17 In the light of the above considerations, the answer to the question submitted should be that the status of a probationary official who is subject to the Staff Regulations and that of a member of the local staff who is subject to the Conditions of Employment are incompatible inasmuch as the acquisition by a member of the local staff of the status of probationary official automatically causes the provisions of the Conditions of Employment to cease to apply and, consequently, causes the contract of employment entered into on the basis thereof to cease to have effect.
Costs
18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Second Chamber)
in answer to the question referred to it by the Tribunal du Travail, Brussels, by judgment of 20 March 1980, hereby rules:
The status of a probationary official who is subject to the Staff Regulations of Officiais of the European Communities and that of a member of the local staff who is subject to the Conditions of Employment of Other Servants of the European Communities are incompatible inasmuch as the acquisition by a member of the local staff of the status of
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probationary official automatically causes the provisions of the Conditions of Employment of Other Servants to cease to apply and, consequently, causes the contract of employment entered into on the basis thereof to cease to have effect.
Pescatore Touffait Due
Delivered in open court in Luxembourg on 25 June 1981.
A. Van Houtte
Registrar
P. Pescatore
President of the Second Chamber
O P I N I O N OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED O N 21 MAY 1981 1
Mr President, Members of the Court,
1. The question to be decided in this case is whether or not a person having the status of a probationary official of a Community institution retains during the probationary period, on the understanding that they are in temporary abeyance, the rights deriving from his previous engagement as a member of the local staff of the same institution.
I shall begin with a brief chronological outline of the facts. By a contract dated 12 August 1974, Mr Hugues Desmedt, a Belgian citizen, was recruited by the Commission of the European Communities in Brussels as a member of the
local staff for a fixed period of six months and was assigned to the post of storekeeper. The contract was renewed for an indefinite period on 13 February 1975. Shortly afterwards, Mr Desmedt participated in an internal competition (COM/C/8/75) to constitute a reserve of clerical assistants in Career Bracket C 5/C 4 and was entered on the list of suitable candidates. On 7 January 1977 he was appointed as a probationary official and assigned to the post of operator at the Computer Centre in Luxembourg.
Unfortunately for him, the outcome of the probationary period was unfavourable. The administration's report in Mr Desmedťs ability to perform the
1 — Translated from the Italian.
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