In Case C-100/88
Augustin Oyowe and Amadou Traore, members of staff of the European Association for Cooperation, an international non-profit-making association set up under Belgian law, represented by Edmond Lebrun, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse-Charlotte
applicants,
v
Commission of the European Communities, represented by Hendrik van Lier, a member of its Legal Department, acting as Agent, assisted by Claude Verbraeken, of the Brussels Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,
defendant,
APPLICATION :
( a ) for a declaration that the applicants are members of staff of the Commission within the meaning of Article 2(c ) of the Conditions of Employment of Other Servants of the European Communities ( hereinafter referred to as "the Conditions of Employment "), with all legal consequences entailed thereby;
( b ) for an order that the Commission should appoint the applicants officials or, at the very least, initiate in respect of them the procedure for appointment as officials;
( c ) in the alternative, for an order that the Commission should guarantee that they will enjoy the full benefit of their pensions regardless of the country in which they may reside in the future;
( d ) for the annulment of the decision rejecting their complaint,
THE COURT ( Second Chamber )
composed of : F . A . Schockweiler, President of Chamber, G . F . Mancini and T . F . O' Higgins, Judges,
Advocate General : M . Darmon
Registrar : J . A . Pompe, Deputy Registrar
having regard to the Report for the Hearing and further to the hearing on 27 June 1989,
after hearing the Opinion of the Advocate General delivered at the sitting on 11 October 1989,
gives the following
Judgment
1 By application lodged at the Court Registry on 24 March 1988, Augustin Oyowe, a Nigerian national, and Amadou Traore, of Malian and French nationality, members of the staff of the European Association for Cooperation ( hereinafter referred to as "the Association "), both working as journalists on the bi-monthly publication The Courier : Africa-Caribbean-Pacific-European Community ( hereinafter referred to as the "Courier "), brought an action seeking a declaration that they were members of the staff of the Commission, an order that the Commission should appoint them officials or initiate in respect of them the procedure for appointment as officials and, in the alternative, for an order that the Commission should guarantee that they will enjoy the full benefit of their pensions regardless of the country in which they may reside in the future .
2 The applicants are members of the "cooperation staff" of, and bound by "cooperation staff contracts" to, the Association, which is an international non-profit-making association set up under Belgian law with the aim of facilitating cooperation between the Community and the developing countries . The Association has three categories of staff : headquarters staff, overseas staff, and staff recruited by the Association under special contracts ( hereinafter referred to as "special contract staff ") and seconded to the Commission .
3 It must be noted that the distinction between special contract staff and cooperation staff is a budgetary one - the former are paid by the Association out of its global resources, while the salaries of the latter are financed by the European Development Fund, in connection with the implementation of a particular project .
4 It is common ground that the applicants, as cooperation staff bound by a contract of employment with an association governed by Belgian private law, come under Belgian pensions law, under which they cease to receive a pension if they leave Belgium . In such an event, they cannot obtain any reimbursement of the pension contributions they have paid .
5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure 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 .
Admissibility
6 The Commission contends that the Court has no jurisdiction to hear the case inasmuch as the applicants do not have the status of officials or other servants of the Communities .
7 It must be pointed out that the Court has on numerous occasions held ( see, inter alia, the judgments of 13 July 1989 in Case 286/83 Alexis and Others v Commission (( 1989 )) ECR 2445, and Case 161/86 Jaeger v Commission (( 1989 )) ECR 2467 ) that it is not only persons who have the status of officials or of employees other than local staff who may bring an action before the Court to contest a decision adversely affecting them, but also persons claiming that status .
8 The objection of inadmissibility raised by the Commission must therefore be rejected .
Substance
9 In their principal claim the applicants allege a breach of general principles of law, in particular the principles of fairness and equality . They maintain that the Association is their employer in appearance only, their real employer being the Commission, and claim that they are the only members of the Association' s staff not to have been appointed officials of the Commission . In the alternative, they argue that the Commission has assumed responsibility for them inasmuch as they can receive payment of their pensions only if they remain in Belgium .
10 In support of the first claim, the applicants refer to the Association' s relationship with the Commission and, in particular, the fact that the publisher of the Courier is one of the Commission' s Directors-General, that the Courier appears in the organization chart of Directorate-General VIII of the Commission, that the applicants' contracts of employment contain clauses under which they are placed at the disposal of the Commission and, finally, that the Commission has the power to manage and direct the Courier .
11 In that connection, it must be pointed out that the situation of the applicants, in the specific context of the Courier, has not disclosed any new factor concerning the legal status of the Association which, as the Court has consistently held ( see, most recently, the judgments of 13 July 1989 in Alexis and Jaeger, cited above ), is an international, non-profit-making association governed by Belgian law and cannot be regarded as an administrative unit of the Commission . The applicants' employer is therefore the Association, and not the Commission . That claim must consequently be dismissed .
12 The applicants claim, further, that there is discrimination between them and the other members of the Association' s staff, who have all been established by the Commission as officials of the Communities .
13 The Commission considers that the fact that it has not established the applicants is justified objectively by the consideration that the status of Community official is not compatible with the role of representing the perspective of the African, Caribbean and Pacific States ( hereinafter referred to as "the ACP States ") fulfilled by the applicants within the joint editorial team of the Courier . The original reason for the applicants' recruitment is evidence of the special role which they fulfil . The duty of allegiance to the Community imposed on all officials under the Staff Regulations of Officials of the Communities ( hereinafter referred to as "the Staff Regulations ") cannot be reconciled with the duties which Mr Oyowe and Mr Traore are called upon to carry out within the Courier' s editorial team .
14 It must be noted, first, that the editorial team of the Courier is made up partly of Commission officials including, in particular, one journalist of European origin, a former member of the special contract staff who was established in 1981 . According to the Commission, the contracts governing the employment relationship between the Association and special contract or cooperation staff are similar and the duties of staff of a given grade are not markedly different, the difference between the two categories of staff members being essentially of a budgetary character . It follows that the applicants' situation under their cooperation staff contract with the Association is not appreciably different from that of their colleagues who are members of the special contract staff .
15 It must also be pointed out that it is clear from the documents before the Court that, although the original reason for recruiting the applicants can be traced to an initiative on the part of the Committee of ACP Ambassadors, nevertheless, under the rules of professional conduct adopted on 3 October 1978 by the Courier' s joint committee and applicable to all the members of its editorial staff, journalists with the Courier, whatever their country of origin, do not defend the points of view and interests of either the ACP States or the Member States, but all work for the common cause of cooperation between the ACP States and the Community . Consequently, journalists on the Courier, whether Community officials or members of the Association' s staff originating from an ACP State, are governed by the same code of practice, and at the most the applicants represent the perspective of their places of origin within the Courier' s editorial team, just as their colleagues who are European officials do by reason of their origin in a Member State . Within the joint ACP-EEC editorial team, the role of representing the perspective of either the ACP States or a Member State is not incompatible with the status of an official, and cannot constitute a justification for the Commission' s rejection of the applicants' request to be established .
16 Finally, it must be borne in mind that in any event the duty of allegiance to the Communities imposed on officials in the Staff Regulations cannot be interpreted in such a way as to conflict with freedom of expression, a fundamental right which the Court must ensure is respected in Community law, which is particularly important in cases, such as the present, concerning journalists whose primary duty is to write in complete independence of the views of either the ACP States or the Communities .
17 In view of all those considerations, it must be concluded that the Commission has been unable to provide any objective justification for its refusal to grant the applicants' request to be established either because of their special position arising out of the nature of their contracts of employment with the Association or because the applicants represent the perspective of the ACP States within the Courier' s editorial team .
18 The implied decision rejecting the applicants' complaint must therefore be annulled .
19 It must be stated, however, that it is not for the Court to order the administration to appoint the applicants as officials ( judgment of 26 January 1989 in Case 224/87 Koutchoumoff v Commission (( 1989 )) ECR 99 ). The claims to that effect must therefore be dismissed . It is to be stressed, nevertheless, that the Commission must take the steps necessary in order to implement this judgment .
20 In view of the foregoing considerations, the alternative claim is no longer relevant .
Costs
21 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Commission has failed in its main submissions, it must be ordered to pay the costs .
On those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Annuls the implied decision of the Commission rejecting the applicants' complaint of 4 November 1987;
( 2 ) Dismisses the remainder of the application;
( 3 ) Orders the Commission to pay the costs .
