Judgment of the Court 15 January 1987

In Joined Cases 271/83, 15, 36, 113, 158 and 203/84 and 13/85

THE COURT composed of: Lord Mackenzie Stuart, President, Y. Galmot, C. Kakouris, T. F. O'Higgins and F. Schockweiler (Presidents of Chambers), G. Bosco, O. Due, U. Everling, K. Bahlmann, R. Joliét and G. C. Rodríguez Iglesias, Judges, Advocate General: J. Mischo Registrar: D. Louterman, Administrator

having regard to the Report for the Hearing as supplemented further to the hearing on 19 Juneţi 986,

after hearing the Opinion of the Advocate General delivered at the sitting on 16 September 1986,

gives the following

Judgment

Admissibility

Substance

The claims for the annulment of the decision refusing to recruit the applicants as temporary servants of the Communities

The submission alleging a breach of the Statutes of the Joint Undertaking

The submission that the Statutes of the Joint Undertaking are unlawful

The submission that the contested decision does not contain an adequate statement of the reasons on which it is based

The claims concerning the Commission's failure to act and based on the third paragraph of Article 148 of the EAEC Treaty

The claims for compensation for the loss suffered

Costs

1. By applications lodged at the Court Registry on 13 December 1983, 11 January, 10 February, 26 April, 25 June and 13 August 1984 and 18 January 1985, the applicants, Alan Ainsworth and Others, brought actions for

2. Reference is made to the Report for the Hearing for the legal context of the dispute and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

3. As pan of the research programme of the EAEC in the field of nuclear fusion and plasma physics, the Council, by Decision No 78/471/Euratom of 30 May 1978 (Official Journal L 151, p. 10), created for a period of 12 years a joint undertaking, the Joint European Torus (JET) Joint Undertaking (hereinafter referred to as JET) whose members are, besides the host organization, the United Kingdom Atomic Energy Authority (hereinafter referred to as the UKAEA) and 12 other research organizations of European States. The seat of JET is at Culham in the United Kingdom.

4. The Statutes of the Joint Undertaking, annexed to Council Decision No 78/471/Euratom, provide that JET is not to be the employer of the staff composing the project team. Such staff, who come under the administrative authority of the Director of JET, are employed either by the UKAEA or by the Commission, depending on the case. According to Articles 8.4 and 8.5 of the Statutes, staff coming from the UKAEA are to remain in the employment of that organization whilst staff coming from other members of the Joint Undertaking are to be recruited by the Commission to fill posts for temporary servants of the Communities.

5. By separate letters sent between July 1983 and June 1984 to the Director of the Joint Undertaking and to the Commission, the applicants, who are British nationals previously recruited by the UKAEA and made available to the Joint Undertaking by that institution,

6. In a standard letter sent to each applicant between November 1983 and November 1984 the Director of the Joint Undertaking informed them that it was not possible to give further consideration to their request on the ground that under the Statutes of JET staff from the UKAEA remain its employees.

7. In the applicants' view, that letter must be regarded as the communication of the decision adopted by the Commission in their regard and they seek its annulment. If, however, that letter was not to be regarded as the communication of such a decision, the applicants claim that the Commission has failed to reply to their request and in the alternative ask the Court to declare that the Commission has railed to act.

8. The Commission and the Council have raised objections to the admissibility of the applications and it is necessary first of all to decide this issue.

9. The Commission and the Council question in the first place the Court's jurisdiction to adjudicate on the applications. They contend that the Court has. jurisdiction only if the acts of a joint undertaking can be assimilated to acts of a Community institution and if those acts do not come within the jurisdiction of the national courts or tribunals by virtue of Article 49 of the EAEC Treaty.

10. It should be observed in this regard that Article 152 of the EAEC Treaty gives the Court of Justice jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment and only where jurisdiction is not conferred upon the Court of Justice by the EAEC Treaty is it provided in the fifth paragraph of Article 49 that disputes in which Joint Undertakings are concerned shall be determined by the appropriate national courts or tribunals.

11. In the present cases, the applicants claim the right to be recruited by the Commission to temporary posts under the Conditions of Employment of Other Servants of the European Communities and contest the legality of the decision refusing to recruit them to such posts. The Commission does not dispute that that decision, signed by the Director of JET, was taken on its behalf by virtue of a delegation of powers.

12. Furthermore, as the Court held in its judgment of 11 March 1975 in Case 65/74 Ponini and Others w EAEC[1975] ECR 319, Article 152 of the EAEC Treaty must be interpreted as meaning that it applies not only to persons who have the status of officials or of servants other than local staff but also to persons claiming that status.

13. Consequently, only the Court of Justice has jurisdiction under Article 152 of the EAEC Treaty to adjudicate on the present applications.

14. The Commission and the Council contend in the second place that the claims for annulment are inadmissible as being out of time. In their view, the contested decision refusing to recruit the applicants merely confirmed decisions which, between 1978 and 1983, defined the applicants' position and which became definitive because they were not challenged in good time.

15. That argument cannot be accepted. It is clear from the documents submitted to the Court that from 1978 to 1983 the applicants were recruited by the UKAEA and in that capacity were made available to the Joint Undertaking in order that they might join the project team. The subject of the decisions adopted for that purpose, which determined only the conditions on which the applicants were engaged by the UKAEA, was different from that of the contested decision. That decision cannot therefore be regarded as confirming the earlier decisions. The claims for annulment are therefore not out of time.

16. Finally, the defendant institutions contend that, since the claims for annulment are inadmissible, the claims for damages must also be inadmissible. It must be pointed out in this regard that the Court has repeatedly held that the action for damages was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature. In the present case, it need only be observed that the defendant institutions do not dispute that the applications were made within the period laid down in Article 44 of the Statute of the Court of Justice of the European Atomic Energy Community.

17. It follows from the foregoing that the objections of inadmissibility raised by the Commission and the Council must be dismissed.

18. The applicants make three submissions in support of these claims:

19. The applicants claim that by virtue of Article 8 of the Statutes of JET all the members of staff making up the project team must be engaged by the Commission as temporary servants of the Communities with the sole exception of those who, at the time of their selection by JET, were already employed by the UKAEA, the host organization. The practice followed by the JET management of offering candidates of British nationality, who are not members of the UKAEA at the time of their selection, the sole possibility of being recruited by the UKAEA and made available in that capacity to JET contravenes Article 8 of the Statutes of the Joint Undertaking as well as the fundamental principles of equal treatment and nondiscrimination on grounds of nationality.

20. It is clear from that argument, as explained in the observations submitted to the Court, that the applicants are in fact challenging two separate practices of the JET management.

21. First, they maintain that by virtue of Article 8.5 of the Statutes a candidate who is not already a member of the UKAEA staff at the time of his selection by JET must be recruited as a temporary servant of the Communities as other personnel. It is not permissible for such a candidate to be recruited, after his selection, by the UKAEA and to be made available to JET in that capacity.

22. It must be pointed out in this regard that Article 8.4 of the Statutes provides that staff made available to JET by the UKAEA, the host organization, shall remain in the employment of the host organization on the terms and conditions of service of that organization and be assigned by the latter to the Joint Undertaking. Neither that provision nor any other provision of Article 8 states that staff made available to JET by a member organization may not be recruited by that organization after selection by JET. A candidate recruited by the UKAEA and made available to JET is ipso facto covered by Article 8.4 of the Statutes: he cannot therefore claim to have been recruited as a temporary servant of the Communities as other personnel pursuant to Article 8.5.

23. It is true that the provisions of Articles 8.1 and 8.5 of the Statutes, which provide that the project team is to be composed of other personnel besides staff from members of the Joint Undertaking, have in fact had no practical consequence. However, as the Council and the Commission have pointed out, the limited life accorded to the JET Joint Undertaking in Article 1 of Council Decision No 78/471 and the concern to ensure that all the members of the JET staff are guaranteed employment at the end of the project have led the JET management to give preference to the solution of having staff made available by the members of the Joint Undertaking and requiring every candidate to find a member organization which will agree to make him available to JET. Such a policy, which meets the requirements of good administration, does not contravene any provision of the Statutes and cannot be regarded as unlawful.

24. The first part of the applicants' argument cannot therefore be accepted.

25. However, the applicants submit in the second place that the JET management did not just require candidates of British nationality to be made available by any of the member organizations of the Joint Undertaking but also obliged them to apply for that purpose exclusively to the UKAEA. In their view, this practice is invalidated by discrimination on grounds of nationality, such discrimination being prohibited by Community law.

26. As far as this point is concerned, the applicants' argument must be accepted. As the Commission itself recognized during the oral procedure, the obligation thus imposed solely on British candidates is discriminatory and has no objective justification.

27. However, it remains to examine whether that unlawful practice was in fact the reason for some of the contested decisions refusing recruitment which, according to the applicants, were rendered unlawful by that practice. It should be observed in this regard that in reply to a question asked by the Court not one of the applicants established or even claimed that in order to comply with the requirements of the JET management he was induced to forgo a chance of being made available to the undertaking by a member organization other than the UKAEA and consequently of being recruited as a temporary servant of the Communities pursuant to Article 8.5 of the Statutes.

28. Consequently, it must be accepted that the discriminatory practice described above has not affected the applicants' position and has not rendered the contested decision unlawful.

29. It follows from all the foregoing that the first submission must be rejected.

30. The applicants challenge the Statutes of the JET Joint Undertaking by way of a plea of illegality. They claim that the distinction made in Articles 8.4 and 8.5 of the Statutes constitutes covert discrimination on grounds of nationality which operates to the detriment solely of British nationals. They maintain that such discrimination is, in particular, contrary to Article 96 of the EAEC Treaty and is not justified by the requirements of public policy, public security or public health.

31. It must be borne in mind that, under Articles 8.4 and 8.5 of the Statutes of JET, staff made available to it by the UKAEA, the host organization, remain in the employment of that organization on its terms and conditions of service, whereas staff made available by the members of JET other than the UKAEA are recruited to posts of temporary servants of the Communities. It is clear from the documents submitted to the Court that the pay received by employees made available by the UKAEA is appreciably less than that received by employees recruited as temporary servants of the Communities.

32. Those provisions do not discriminate on grounds of nationality. As pointed out above, each member organization is free to make available to the Joint Undertaking employees of any nationality. Furthermore, it is clear from the documents submitted to the Court and from the oral argument presented to it that the real purpose of the provisions at issue is to establish a difference of treatment according to the member organization which makes the employee in question available to the Joint Undertaking and not according to the employee's nationality.

33. It is nevertheless contrary to the general principle of equal treatment, which is one of the fundamental principles of Community law, for comparable situations to be treated differently unless the difference in treatment is objectively justified (see in this regard in particular the judgment of 14 July 1983 in Case 152/81 Ferrano and Others v Commission [1983] ECR 2357 and of 6 December 1984 in Case 59/83 Biovilac SA v EEC [1984] ECR 4057).

34. In order to determine whether there are objective justifications for the difference in treatment established by Articles 8.4 and 8.5 of the Statutes, the very special nature of the joint undertaking concerned and the specific constraints which had to be taken into account in its rules of organization must be taken into consideration.

35. As the Commission and the Council have pointed out, the JET Joint Undertaking is devoted entirely to research and its duration is limited in time. An undertaking of that kind can work to good effect only in close association with a national organization that is already in existence. That is why JET was established at Culham in the United Kingdom on the same site where the installations of the UKAEA, the host organization of the Joint Undertaking, were situated.

36. The UKAEA agreed, in its capacity as host organization, to assume responsibilities of its own in the organization and functioning of JET. Thus, for example, under Article 9.1 of the Statutes, the UKAEA bears by itself a proportion of the expenditure of the JET Joint Undertaking equal to that borne by all the other members of the undertaking (except Euratom). It should also be noted that under Article 15 of the Statutes and the Annex to them the UKAEA bears the cost of putting the JET site into standard condition, provides all the technical, administrative and general services required by the Joint Undertaking, supplies support staff and is responsible for the disposal of radioactive waste. It also emerged at the hearing that it has been possible for the Joint Undertaking to use some of the UKAEA's scientific equipment and that the UKAEA has agreed to make 222 persons available to the project team out of a total of 384.

37. The UKAEA, the host organization of the JET Joint Undertaking, was thus in the very special position of having to manage staff having the same qualifications, employed on the same site on the same kind of work but assigned to two legally distinct organizations. It was anxious to prevent that situation from upsetting the functioning of its own organization and, supported on this matter by the United Kingdom Government, requested in the negotiations which preceded the adoption of Council Decision No 78/471/Euratom that the staff which it would make available to the JET Joint Undertaking should remain subject to its own conditions of service. By reason of the privileged role attributed to the UKAEA as a result of the special characteristics of the Joint Undertaking, that requirement could not be ignored in the Joint Undertaking's Statutes.

38. In those circumstances it appears that the very particular position of the UKAEA, the host organization, in relation to the Joint Undertaking, which is not comparable to the position of any other member organization, constitutes an objective justification for the difference in treatment established by Articles 8.4 and 8.5 of the Statutes.

39. The second submission must therefore be rejected.

40. In the contested decision the terms of Articles 8.1, 8.4 and 8.5 of the Statutes are set out and the conclusion is then drawn under those provisions employees recruited by the UKAEA continue to be governed by its conditions of service and cannot be recruited as temporary servants of the Communities. Such a statement explains the Commission's reasoning in a way which allows the Court and those concerned to ascertain whether the relevant provisions have been correctly applied. The reasons given must therefore be regarded as sufficient and the submission set out above must be rejected.

41. It follows from all the foregoing that the claims for the annulment of the decision to refuse to recruit the applicants as temporary servants of the Communities must be dismissed.

42. These claims are put forward only in the alternative in case the Court should not accept that the decision the annulment of which is sought may be regarded as defining the Commission's position with regard to the requests submitted to it by the applicants. Since that is not the case, it is not necessary to adjudicate on the aforesaid claims.

43. These claims are based in the first place on the submission that, for the reasons set out in support of the claims for annulment, the refusal to recruit the applicants as temporary servants of the Communities was unlawful. The dismissal of the claims for annulment necessarily entails the rejection of this first submission.

44. The applicants have stated in the second place that their claim for compensation is also based on the fault on the part of the Commission in stating that candidates of British nationality could be employed only by the host organization to the exclusion of any other member organization.

45. It must be emphasized in this regard that the fault on the part of the Commission would not afford the applicants a right to compensation unless it had actually affected their position, that is to say if it had induced them to forgo the chance of being made available to the JET Joint Undertaking by a member organization other than the UKAEA.

46. As stated above, no such proof has been furnished. The second submission must therefore be rejected with the result that the claims for compensation must be dismissed.

47. It follows from all the foregoing that the applications must be dismissed in their entirety.

48. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of those rules, costs incurred by the institutions in proceedings brought by servants of the Communities are to be borne by the institutions.

On those grounds, THE COURT hereby:

(1) Dismisses the applications;

(2) Orders the parties to bear their own costs.

1 Language of the Case: English.