Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The action brought before the Court by Heinrich Maag expressly challenges the decision whereby the Commission rejected his request for the payment of default interest which was based on the alleged delay on the part of the Commission in paying four instalments of arrears arising from retroactive adjustments of the daily remuneration paid to the applicant between 1 July 1980 and 31 December 1982.

2. Having offered his services to the Commission, Mr Maag, a Swiss national, was engaged on many occasions from 1977 onwards as a self-employed freelance conference interpreter, to quote the description given by the Commission to that category of interpreters in Article 1 of its Decision of 8 October 1974 laying down the arrangements governing the conditions of work and remuneration of such interpreters, which entered into force on 28 October 1974. Mr Maag is one of the 2060 self-employed interpreters listed by the Commission on 1 January 1985 whose services supplement those of the 305 interpreters — officials and temporary staff — within the language service of the Communities.

3. For a proper understanding of this case a brief introduction is required to the legal provisions governing the contracts under which the Commission engages freelance conference interpreters.

4. In support of his main contention concerning the admissibility of his action, the applicant reminds the Court that it has exclusive jurisdiction to determine the nature of the service relationship between an official or other servant and the Community (Case 65/74, Porrini [1975] ECR 319). Mr Maag takes the view that the rules laid down by the Arrangements enable freelance interpreters to be assimilated to members of the auxiliary staff for the purposes of the Conditions of Employment. In support of that proposition, he puts forward two submissions: one concerning the similarities between the rules applied to freelance interpreters and to members of the auxiliary staff and the argument that the Conditions of Employment are exhaustive; and the other concerning the decision of the European Parliament, based on Article 78 of the Conditions of Employment, to treat as auxiliary staff the freelance interpreters whom it engages.

5. The Commission, however, takes the view that the Court has no jurisdiction in disputes concerning the contractual relationship between itself and self-employed interpreters. In its view, they are not entitled to rely on the Conditions of Employment, which differ both in form and substance from the terms on which freelance interpreters are engaged.

6. Despite the brevity of the Commission's arguments in which it contests the applicability to freelance interpreters of the rules relating to auxiliary staff in the Conditions of Employment and, consequently, seeks to have Mr Maag's action declared inadmissible, I share its point of view. It is, however, appropriate to emphasize in support of the Commission's contentions that the needs which are met by freelance interpreters are of a special character, that the rules laid down by the Commission to take account of that factor are adequate and, in connection therewith, that the Conditions of Employment are inapplicable in that regard.

7. In the light of all the foregoing considerations, it is clear that the Commission, in establishing a sui generis relationship with freelance interpreters, has merely taken account of the special nature of the services which such interpreters are required to provide and of the inapplicability in relation thereto of the Conditions of Employment, in particular the provisions governing auxiliary staff.

8. In the alternative, the applicant relies on the general provisions of the second paragraph of Article 173 of the EEC Treaty.

9. Therefore, without there being any need to consider the substance of the case, I conclude that the action brought by Mr Maag is inadmissible and that he must consequently be ordered to pay the costs.

1 Translated from the French.