Opinion of Mr Advocate General Capotorti

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.

2. It is appropriate to emphasize at the outset that this Court, before which the present case has been brought on the basis of Article 177 of the EEC Treaty, is called upon to interpret rules of Community law and especially the provisions of secondary legislation which govern the Staff Regulations of Officials of the European Communities and determine the Conditions of Employment of Other Servants of the European Communities. The Court will not, however, have to concern itself with the interpretation of Belgian rules of labour law to the extent to which they are applicable to the duties performed by the plaintiff as a member of the local staff. This is so notwithstanding the fact that the final part of the question submitted by the national court expressly refers to rules of that kind. In other words, this Court will only have to determine, by reference to the legal system of the Community, what are the effects of the engagement of a person as a probationary official by one of the institutions on a previous employment relationship of a contractual nature which bound that person to the same institution.

3. It is worth considering briefly the legal system which applies to the probationary period of European officials. In this connexion, Article 34 (1) of the Staff Regulations lays down that Officials other than those of Grades A 1 and A 2 shall serve a probationary period before they can be established and the first subparagraph of Article 34 (2) adds that a probationer whose work has not proved adequate for him to be established in his post is to be dismissed. The probationary period and subequent establishment (or dismissal) of the official constitute the final steps in the engagement procedure which is carried out in various stages and is governed by Chapter I of Title III of the Staff Regulations (Articles 27 to 34).

4. It is now time to consider the question submitted by the Belgian court. It asks whether the mere suspension of the status of a member of the local staff following engagement for a trial period by the same Community institution is compatible with the status of a probationary official. To the extent to which the provisions contained in the Staff Regulations on the probationary period are taken as a basis, the answer must be in the affirmative. The legal rules governing the probationary period do not strike me as at all incompatible with keeping a pre-existing employment relationship in abeyance during that period. To the contrary, the temporary nature and the uncertain outcome of the probationary period justify, from the point of view of safeguarding the worker (the criterion on which the rules of labour law are based in every legal system), a solution which consists in not terminating prematurely and definitively a pre-existing employment relationship but in merely suspending it. If we then look at the general principles of the system governing the European Public Service, we find that the only principle which may be of relevance is the official's duty of allegiance to the institution which is expressed in Articles 11 to 19 of the Staff Regulations. I do not believe, however, that the retention of the pre-existing relationship can be regarded as conflicting with the duty of allegiance where, as in this case, the dormant relationship subsists with the same institution as the one in which the official is required to spend his probationary period. A situation of this kind rules out any conflict, even a potential one, between the interests of the administration and the keeping in abeyance of the original relationship. It might be possible to go so far as to state that the probationary official's interest in keeping his pre-existing relationship in a dormant state coincides with that of the administration in maintaining a link with a person who, in his capacity as a member of the local staff, has acquired specific experience in the performance of his duties.

5. On the basis of all the considerations which I have discussed, I propose that the Court should give the following answer to the questions submitted by the Tribunal du Travail, Brussels, by judgment of 20 March 1980:

1 Translated from the Italian.