Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The applicants in the proceedings now before the Court were — with the exception of Angelo Gemelli and Bruno Palombi, who had been employed by the Joint Nuclear Research Centre, Ispra, as so-called appaltati [contract staff] since 1964 and 1967 respectively — engaged at the aforementioned Joint Nuclear Research Centre between 1970 and 1974 as local staff within the meaning of Article 4 of the Conditions of Employment of Other Servants, with contracts for an indefinite period and paid from research appropriations, but one of the applicants, Angelo Del Grande, was engaged as a member of the establishment staff. It appears that with the exception of Mr Del Grande the applicants have a technical training with appropriate qualifications and hold commensurate appointments. For further details I refer to the description of their duties contained in the reports concerning the applicants and to certain statements made by their superiors in answer to an express request by the head of administration at Ispra in 1975. Those statements were intended for use by a working party whose task was to deal with the problems raised by the so-called local staff, who as a result of a lack of sufficient posts in the budget could not be appointed as members of the establishment staff.

That working party, which was set up on a joint basis at the beginning of 1976, was required to consider which members of the local staff might be given preference for appointment as members of the establishment staff within the meaning of the third paragraph of Article 4 of the Conditions of Employment of Other Servants, which was still applicable at that time. The names of four of the applicants in the present case were among those to be found in ninth and thirteenth place on the list drawn up by that working party. Furthermore, the minutes of that working party for August 1976 contain a list of the employees dont les fonctions et/ou les diplômes paraissent, suite à un premier examen, les situer à un niveau supérieur à la classe 1 (Ref. agents d'établissement). That list includes all the applicants except Mr Del Grande who, as already stated, apparently has no technical qualification. He maintains, however, with reference to the reports for the years 1969 to 1973, that he is also a technician or at any rate — on the strength of the report covering the years 1973 to 1975 — that his position is almost equivalent to that of such employees. On the basis of the report drawn up by that working party six other members of the local staff who performed duties of a technical nature were given contracts as members of the establishment staff in the course of 1976 and thereafter were apparently also appointed officials in Category B. One further member of the local staff was directly appointed as an official in Category B on the basis of a competition.

Another event which took place in 1976 was the amendment of Regulation No 259/68 by Council Regulation No 2615/76 of 21 October 1976 (Official Journal No L 299 of 29 October 1976, p. 1), as a result of which the group known as establishment staff in the Conditions of Employment was abolished (last indent of Article 1 and last paragraph of Article 4) and Article 2, which begins:

was supplemented by a subparagraph (d), as follows:

Furthermore, Article 8 of the Conditions of Employment was supplemented by a paragraph worded as follows:

Finally, it was also provided that Articles 84 to 98 of the Conditions of Employment of Other Servants were to be repealed.

In addition, Article 2 of the aforementioned regulation contains transitional provisions which — in so far as they are of interest here — provide as follows:

Those provisions were also applied to the applicants. In that connexion it is to be observed that as a result of problems of classification existing at the Joint Research Centre, Ispra, a special committee was set up, also on a joint basis. As a result of deliberations which took place in June and July 1977 that committee stated, on the one hand, that seven of the applicants possessed qualifications donnant vocation à un classement en Categorie B. On the one hand it was unanimously agreed that the classification of all the applicants in Category C must be regarded as correct. Accordingly contracts of employment dated 25 January 1977, which were intended to take effect on the entry into force of Regulation No 2615/76, were submitted to the applicants for signature in July 1977. They provided for employment as members of the temporary staff in Category C for an indefinite period. By the end of July 1977 the contracts were signed by all the applicants, including one who had abandoned an attempt to introduce a reservation.

The applicants are nevertheless of the opinion that the introduction of the new rules is disadvantageous for them and, furthermore, that their contracts are not in the correct form. They therefore submitted a formal complaint to the appointing authority on 25 October 1977 in which they maintained that their classification had been incorrect since their entry into service and that in any event the classification in Category C provided for by the new contracts was unlawful. They claimed that in this way they were discriminated against, in particular in relation to those members of the local staff performing duties of a technical nature, who had entered Category B for an indefinite period just before Regulation No 2615/76 entered into force. The applicants' contracts of employment should similarly have provided for classification in Category B for the same period. Furthermore, Regulation No 2615/76 should not have been applied to staff who were already in service. They allege that the regulation must also be regarded as unlawful, since it makes no provision for contracts for an indefinite period for Categories A and B, with the result that staff in Category C must relinquish the possibility of employment for an unlimited period if they are promoted to Category B.

That complaint was unsuccessful. In a decision in reply dated 20 March 1978 and signed by a member of the Commission it was emphasized that Regulation No 2615/76 unquestionably applied not only to new appointments but also to local staff already in service.

Furthermore, in the light of the situation of the complaints on the entry into force of the regulation and having regard to the transitional provisions of that regulation, the allocation of a post in Category C in a contract for an unlimited period was unexceptionable.

As a result the applicants lodged an application before the Court of Justice on 17 May 1978, in which they asked the Court to:

My opinion on those conclusions is as follows:

1 Translated from the German.