Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

There are two cases pending before the Labour Commissioner at the Tribunale di Varese in which the main relief sought is a declaration that a number of persons ought to be regarded as Euratom officials or as establishment staff and should receive the appropriate remuneration.

These persons — meanwhile they have all become local staff within the meaning of Article 79 to 81 of the Conditions of Employment of Other Servants of the Communities — were employed by two Italian Companies, which together with Euratom, are defendants in the main action. The Commission of the European Communities had concluded contracts for services with these companies under which the companies were responsible for part of certain subordinate activities on the premises of the Ispra Research Centre of the Joint Nuclear Research Centre, for example, the cleaning, maintenance and repair of the plant and buildings. In this connexion the plaintiffs allege, and they tender evidence in this respect, that they had to work on the premises of the Research Centre, to use in their work materials supplied by the Centre and to comply with directions which officials of the Community gave them. The salaries paid to them by the defendant companies were, however, lower than those of officials and establishment staff with whom they had worked side by side in the performance of the same or similar tasks.

According to the plaintiffs' view this is not in accordance with the Italian Law No 1369 of 23 October 1960 prohibiting the intervention and interposition of third parties in service relationships and laying down new requirements governing the hiring of labour in connexion with contracts for services. Article 1 of the Law provides:

Paragraph 4 of the said article applies this to state concerns and public bodies. It follows from paragraph 5 that workers employed in contravention of the restrictive provisions of this article shall for all purposes be deemed to be employed by the undertaking which has actually made use of their services.

From this the plaintiffs infer that from the time when they began work they are to be treated in every respect as officials of Euratom in certain grades, alternatively as establishment staff in certain grades and that accordingly they had money claims against the European Atomic Community.

Alternatively they rely on Article 3 of the said Italian law which provides:

Based on this the plaintiffs seek a declaration that Euratom is at least jointly and severally liable with the said two Italian companies to pay the plaintiffs a salary and emoluments equal to those received by officials or establishment staff in the categories mentioned.

Lastly, in the further alternative they claim treatment as local staff of the Research Centre.

On these claims, which the Commission of the European Communities opposes, the Commissioner, before whom the matter has come, has given a preliminary ruling that the Italian Law No 1369 does not apply to Euratom. For the prohibitions in the law are directed only against undertakings and Euratom is not an undertaking within the meaning of the law and the Research Centre at Ispra does not carry on a business in the economic sense. It is also significant that the contracts for services concluded by Euratom are governed by Article 33 (1) of Annex F to the Italian Law No 906 of 1 August 1960 on the ratification of the Agreement concluded in Rome on 22 July 1959 between the Italian Government and the European Atomic Energy Community for the establishment of a Joint Nuclear Research Centre at Ispra. Under this the Commission has the obligation to provide conditions of work as favourable as those for work of the same nature in industries in the region concerned. This obligation is more limited than that in Article 3 of the Italian Law No 1369.

In the Italian Commissioner's view the application for a declaration that Euratom is under a joint and several obligation by virtue of Article 3 of Law No 1369 must therefore be rejected. In the same way, having regard to the Agreement already mentioned concluded between the Italian Government and Euratom and the fact that the plaintiffs already receive the treatment which is provided for in this Agreement, the claim that the plaintiffs should be accorded the status of local staff should be rejected.

The Commissioner considers it arguable however that the legal principles, common to all legal orders, relating to fictitious transactions according to which the real substance of those transactions must be given effect, come into operation. This — in relation to the present matter — would mean that the existence of a direct master and servant relationship between Euratom and the plaintiffs would have to be recognized. Looked at in this way, then, in the view of the Commissioner before whom the matter was brought, the main applications of the plaintiffs could be regarded as admissible even if the Italian Law No 1369 did not apply.

Since, however, the Commission objected that the Italian Commissioner did not have jurisdiction under the provisions of the Euratom Treaty to decide the two main applications and that in any case an instrument of appointment was necessary which a judge could not replace, the Commissioner stayed the proceedings by judgment dated 18 March 1974 and referred the following three questions for a preliminary ruling under Article 150 of the Euratom Treaty:

My views on these problems are as follows.

1 Translated from the German.