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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Secretary of State for Children Schools & Families v Fletcher [2008] UKEAT 0095_08_3009 (30 September 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0095_08_3009.html Cite as: [2008] 3 CMLR 47, [2009] ICR 102, [2008] UKEAT 0095_08_3009, [2008] UKEAT 95_8_3009

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APPEARANCES

 

For the Appellant	MR BRUCE CARR (of Counsel) and Ms MAYA LESTER (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) One Kemble Street London WC2B 4TS
For the Respondent	MR NIGEL GIFFIN (One of Her Majesty's Counsel) Instructed by: Messrs Reynolds Porter Chamberlain LLP Tower Bridge House St Katharines Way London E1W 1AA


 


SUMMARY

Fixed Term Employment Regulations

The Secretary of State for Children Schools and Families who employs teachers only in the European Schools may not claim as objective justification for imposing a 9 year fixed term rule on his employees, the existence of the rule in Staff Regulations adopted by the European Schools pursuant to a 1994 Statute.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the relationship between obligations imposed upon the Secretary of State by an agreement between European Union states for the conduct of the European Schools and obligations to an individual employee found in domestic regulations made to transpose the Directive on fixed-term employment.
2. The judgment represents the views of all three members. We will refer to the parties as they were at the Employment Tribunal, Mr Fletcher is the Claimant and the Secretary of State is the Respondent. We allowed without opposition new evidence relating to steps taken by the Respondent's representative in discussion with his European Schools colleagues, further documentation, and a new point of law to be argued by the Respondent.

Introduction

3. It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal sitting over four days at London Central, chaired by Employment Judge Edge, registered with reasons on 13 December 2007. The Claimant was represented by Mr Nigel Giffin QC and the Respondent by Mr Bruce Carr of Counsel, today leading Ms Maya Lester of Counsel. The judgment has been delayed so that the parties could consider conciliation under EAT Rule 36. This was greeted without enthusiasm. Although neither party sought a reference to the European Court of Justice we invited them to consider questions which might be referred should we be so minded. These questions are agreed:

"1 Does Clause 5 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work (the "Directive") apply to the employment of persons to work in the European Schools pursuant to the Regulations for Members of the Seconded Staff of the European Schools (the "Staff Regulations") made under the Statute of the European Schools (the "Statute")?

2. If so, is the fact that Article 29 of the Staff Regulations limits the maximum period of secondment to the European Schools to 9 years (or 10 years in exceptional cases) capable, within the meaning of the Directive, of constituting an objective reason justifying the use of successive fixed-term contracts between a teacher in the European Schools and the Member State which is a party to the Statute, where Article 29 has been found by a domestic Employment Tribunal not itself to be objectively justified?"

4. These questions directly focus upon the issue in the appeal under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER). If we can answer them ourselves there is no need for a reference but if in doubt there is.
5. The sole issue on appeal is whether the Employment Tribunal erred in law when it granted a declaration to the Claimant that he is a permanent employee of the Respondent, rejecting the Respondent's defence of justification based on Art 29 of the Staff Regulations precluding employment for longer than 9 years. The issue is described by the Claimant as this: since the 9 year rule has not been objectively justified, it cannot be objectively justifiable to follow it.
6. The new documentation indicates the concern of the recognised trade unions at the European Schools over the common issues affecting their members and the wish that the Respondent act decisively to challenge a rule in the Staff Regulations said to be in conflict with obligations under the Directive.

The facts

7. In 1978 a European School was set up in Culham, Oxfordshire, where the Claimant subsequently worked. The Employment Tribunal made the following findings relevant to the appeal:

"7 (i) The Claimant is employed by the Respondent as a teacher at the European School in Culham on what is said to be a one year fixed term contract which is due to expire on 31 August 2008.

(ii) The European Schools are governed and administered according to the terms of the Convention defining the Statute of the European Schools of 1994 (the Statute). This is an international treaty to which EC member states and European Communities are parties. Under the Statute the European Schools are governed by an international governing body (the Board of Governors) whose function is to oversee the administration of the European Schools and to take decisions on their financing and structure. The Board of Governors is comprised of representatives from the 27 member states, the European Commission, staff associations, parents associations and the EU Patent Office.

(iii) The Statute requires the Board of Governors to lay down general rules for the schools including service regulations for the teaching staff. The current version is the 1996 Regulations for Members of the Seconded Staff of the European Schools (the Staff Regulations).

(iv) Voting within the Board of Governors is conducted on a one member one vote basis and unanimity is required for certain decisions affecting the structure and financial arrangements of the European Schools. As a result one member state cannot change the system. Only four of the 27 member states are in a similar position to the UK.

(v) In addition there is a body called the Troika which is comprised of the present President of the Board of Governors, the previous President and the President for the forthcoming year.

(vi) Article 29 of the Staff Regulations provides inter alia

"The total period of secondment may not be more than 9 years. In special cases duly justified in the School's interest, on a proposal from the Director and with the National Inspector's agreement, a one year extension may be granted by the seconding authority."

This is commonly referred to as the 9 year rule.

(vii) The Claimant has been employed by the Respondent under a succession of fixed term contracts namely a two year probationary contract starting on 1 September 1988, a year 3 contract starting on 1 September 2000, a 4 year contract starting on 1 September 2003 and a 1 year contract starting on 1 September 2007. The claimant has been employed for a continuous period of over 9 years as at the date of the hearing although for the relevant purposes of the Fixed Term Regulations employment prior to 10 July 2002 is disregarded.

…

(xii) The European Schools are staffed by teachers employed by member states and assigned to posts in the European Schools. There are also a number of locally employed teachers who are appointed by the schools direct. Locally employed teachers are employed when seconded teachers are not available. In the United Kingdom the Respondent appoints teachers to fill the European Schools posts that are assigned to the UK and directly employs 235 of the 1,330 European Schools teachers who are seconded or assigned to the schools by EU member states. The only teachers directly employed by the Respondent are those which it assigns to the European Schools in this way. In maintained schools teachers are employed either by the local authority or directly by the governing body of a school depending on the type of school. The Respondent does not employ any teachers in posts in maintained schools and has no control over or responsibility for how those posts are filled. In contrast teachers in many EU states are employed by the state and are guaranteed employment at the conclusion of their time at a European School often being promoted on their return. Teachers in some states lose civil service status if they remain outside the country for more than 9 years Civil service status has considerable benefit relating to pension entitlement and healthcare. UK teachers do not have the same security. When their period at a European School ends they have no job to go to. They are unemployed and most seek employment in the open market. Such teachers are at a disadvantage having been outside the UK national curriculum for a period and they experience difficulties finding alternative employment. …."

8. The 9 year rule has a very long history and was said to be justified by the Troika, whose reasons were relied upon by the Respondent. These are what are described by Mr Carr as the "factual justifications" which he says were robustly dismissed by the Employment Tribunal and are not appealed. The Employment Tribunal also considered the "legal justification" based upon the Respondent's obligation imposed on him by Article 29, the 9 year rule. It rejected that, too.
9. It is now common ground that the relevant decision by the Respondent was made on 6 August 2003 when the Claimant was appointed for a final period of four years from 1 September 2003. Although he was again appointed for a further year in 2007 to expire on 31 August 2008, the justification for the Respondent's position is to be judged as at 2003. If the justification is rejected, the Claimant became a permanent employee of the Respondent on 10 July 2006, four years after the relevant date in FTER Reg 8(4).
10. It is also accepted that the issue is not one of jurisdiction for the Respondent submitted to the jurisdiction of the Employment Tribunal in respect of his obligations as the Claimant's employer. Nor is it concerned with procedure: the case is correctly about a defence to a substantive right.
11. Since the Employment Tribunal's judgment, the Respondent asked the Board of the Schools to consider suspending the 9 year rule but it has not done so. As a practical matter, the Claimant has, out of caution, and whilst maintaining that he was entitled to continue in the European Schools, decided to take employment elsewhere and his employment by the Respondent has in fact come to an end. .

The legislation

12. The starting point must be the domestic legislation under which the Claimant brings his case. FTER Regulation 8 is as follows:

"(1) This regulation applies where -

(a) an employee is employed under a contract purporting to be a fixed-term contract, and

(b) the contract mentioned in sub-paragraph (a) has previously been renewed, or the employee has previously been employed on a fixed-term contract before the start of the contract mentioned in sub-paragraph (a).

(2) Where this regulation applies then, with effect from the date specified in paragraph (3), the provision of the contract mentioned in paragraph (1)(a) that restricts the duration of the contract shall be of no effect, and the employee shall be a permanent employee, if -

(a) the employee has been continuously employed under the contract mentioned in paragraph 1(a), or under that contract taken with a previous fixed-term contract, for a period of four years or more, and

(b) the employment of the employee under a fixed-term contract was not justified on objective grounds -

(i) where the contract mentioned in paragraph (1)(a) has been renewed, at the time when it was last renewed;

(ii) where that contract has not been renewed, at the time when it was entered into."

13. By Regulation 7 a complaint may be presented to an employment tribunal and by Regulation 9(5) the remedy for an employee who considers he or she is a permanent employee is a declaration to that effect.
14. These Regulations are the transposition of obligations placed on the United Kingdom by Council Directive 1999/70/EC, containing the Framework Agreement on fixed-term work concluded by the general cross-industry organisations, representing interested collective parties. The Directive and the Framework Agreement contained in Annex 1 are each preceded by a preamble. Paragraph 7 of the General Considerations recognises that the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse. The agreement itself includes as its purpose the prevention of abuse arising from the use of successive fixed term employment contracts (clause 1). Measures required by the agreement to prevent abuse are those to be taken as one of three options by Member States (Clause 5). The one adopted by the United Kingdom is "to provide for objective reasons to be given justifying the renewal of fixed term contracts". These provisions impose an obligation on all member states to adopt all the measures necessary to ensure they are fully directly effective: see Impact v Ministry of Agriculture and Food C/268/06 [2008] IRLR 552 at paras 40-41. Appropriate measures may be taken by the Member State in accordance with the options provided for: ibid para 90.

The European Schools

15. The original Statute of the European School of 12 April 1957 was the subject of a consolidating measure known as the Convention Defining the Statute of the European Schools on 17 August 1994. This convention acknowledged that the European Schools system is sui generis, that is unique, and that it should provide "adequate legal protection against acts of the Board of Governors … to the teaching staff …" (Preamble). Title VII includes a special provision (Article 28) entitling the Board to act unanimously in respect of measures for a particular school. Decisions are made by the Board adopting a two-thirds majority except where unanimity is required (Article 9). Article 12 entitles the Board to lay down service regulations for teaching staff. Any dispute is to be decided by reference to Article 26 which provides as follows:

"The Court of Justice of the European Communities shall have sole jurisdiction in disputes between Contracting Parties relating to the interpretation and application of this Convention which have not been resolved by the Board of Governors."

16. Article 27 sets up a Complaints Board which has the sole jurisdiction in the first and final instance to determine any dispute concerning the application of the Convention to teachers.
17. Staff Regulations for Members of the Seconded Staff were made pursuant to Article 12 with effect from 1 September 1996. Article 29, the 9 year rule, provides for secondment of not more than 9 years but with an additional 1 year discretionary extension. By Article 31 termination of service is by expiry of the period of secondment, and on other grounds. Article 49 provides a potential two-tier system for the payment of salary. The Respondent pays the rate payable to a teacher under national conditions in the UK and the school through the European Union pays any additional figure. This is what gave rise to the problem in Hurd v Jones [1986] ECR 1/29 (below)
18. By Section 2(2) of the European Communities Act 1972 regulations may be made for the purposes of implementing Community obligations in the UK. By the European Communities (Definition of Treaties) (Statute of the European Schools) Order 1996 ("the 1996 Order") the 1994 Statute was to be regarded as "a Community Treaty" as defined in s1(2) of the European Communities Act 1972". That means pursuant to s2(1) "all such rights, powers, liabilities, obligations, restrictions from time to time created or arising under the Treaty are without further enactment to be given legal effect". Thus the Statute of the European School became a Convention defining the statute of the European Schools and then is to be regarded as a treaty of the European Communities.
19. At the heart of the Respondent's case is the original Article 5, now Article 10, of the Treaty of Rome. It is described broadly as the obligation of solidarity or loyalty or mutual co-operation. Article 10 provides:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's task. They shall abstain from any measures which could jeopardise the attainment of the objectives of the Treaty."

20. In Hurd v Jones (above) the Court of Justice heard a claim in respect of the income tax of a teacher at Culham. The Court described the status of the school:

"20. In order to resolve this issue it should be stated in the first place that the European Schools were set up not on the basis of the Treaties establishing the European Communities or on the basis of measures adopted by the Community institutions, but on the basis of international agreements concluded by the Member States, namely the above mentioned Statute of the European School and the Protocol on the setting-up of European Schools. Those agreements together with the instruments, measures and decisions of organs of the European Schools adopted on that basis do not fall within any of the categories of measures covered by Article 177 of the EEC Treaty and Article 150 of the EAEC Treaty. The mere fact that those agreements are linked to the Community and to the functioning of its institutions does not mean that they must be regarded as an integral part of Community law, the uniform interpretation of which throughout the Community falls within the jurisdiction of the Court. The Court therefore does not have jurisdiction to give a preliminary ruling, under Article 177 of the EEC Treaty and Article 150 of the EAEC Treaty, on the interpretation of such instruments."

37. However, such cooperation between the Member States and the rules relating thereto do not have their legal basis in the Treaties establishing the European Communities and are not part of the law created by the Communities and derived from the Treaties. The provision of the Treaties do not therefore apply to the Statute of the European School or to decisions adopted on the basis of that instrument.

38. As regards, more specifically, Article 5 of the EEC Treaty, it should be noted that the second sentence of the first paragraph of that article imposes on Member States an obligation to facilitate the achievement of the Community's tasks, while the second paragraph requires Member States to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty. As the Court held in particular in its judgment of 10 February 1983 (Case 230/81 Luxembourg v European Parliament [1983] ECR 255), that provision is the expression of the more general rule imposing on Member States and the Community institutions mutual duties of genuine cooperation and assistance. Those duties, which are derived from the Treaties, cannot be applied to agreements between the Member States which lie outside that framework, such as for example the Statute of the European School."

Discussion and conclusions

21. The Respondent submits that the obligation adopted by the UK under the 1994 Statute through the Staff Regulations overrides his duty to transpose the Directive into UK legislation by the FTER. This is different from the submission recorded at paragraph 43 of the Tribunal's judgment but permission is given for it to be advanced here. The central proposition of the Claimant is that the 9 year rule conflicts with the FTER and the UK cannot rely on the rule to justify discrimination. There is no lawless zone or legal no-man's land entitling the Respondent to disregard the Directive and the FTER for the 235 teachers he employs.
22. It seems to us, applying Hurd v Jones (above) that the Staff Regulations providing for the 9 year rule are not part of the 1994 Statute since they are rules created by the Board. They constitute "decisions adopted on the basis" of the 1994 Statute and "agreements between the Member States which lie outside that framework". The approach of the Court of Justice in 1986 to the 1957 Statute may not be the same as that of Parliament in the 1996 Order to the 1994 Statute. It is not necessary for us to decide that. But the Court's approach to non Statute measures such as the Staff Regulations is clear.
23. Secondly, the Respondent relies on the judgment of the European Court in Adeneler [2006] ECR 1/6057. This case deals with the application of the Directive to classes of worker, and the opportunity to present justification. The Court noted that there is no distinction in the scope of the Directive as between those engaged in the private and public sectors (see paragraph 57). Thus the fact that the employees were engaged by the Greek Milk Board, a public sector employer, did not take them outside the scope of the Directive. We note that this Directive contains no occupational exceptions or opportunity for derogations, whereas other Directives dealing with employment law do: see for instance Article 1.1(c) and 1.3 of the Directive on Transfers [2001/23/EC] (administrative reorganisations and seagoing vessels); the Collective Redundancies Directive [98/59/EC] Article 1.2 (employees employed for limited periods of time or by public administrative bodies and seagoing vessels); the Directive on Young People [98/33/EC] Article 2.2 (domestic service and non-harmful work); and the Part-time Workers Directive [97/81/EC] Article 2.2 (casual workers). At paragraph 56 of the judgment in Adeneler the Court noted that the framework agreement "encompasses all workers without drawing a distinction …".
24. In answer to the second question posed to it, and also relevant in our case, the Court held that "the mere fact that the conclusion of a fixed term contract is required by a provision of statute or secondary legislation of a Member State" may not constitute an objective reason justifying such a contract. The Court held:

"60 As this concept of 'objective reasons' is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of clause 5(1)(a) thereof (see, to this effect, inter alia Case C-17/03 VEMW and Others [2005] ECR 1-4983, paragraph 41, and the case-law cited, and Case C-323/03 Commission v Spain [2006] ECR 1-0000, (paragraph 23).

61 The Framework Agreement proceeds on the premiss that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement).

62 Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations).

63 From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers. By laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.

64 Thus clause 5(1) of the Framework Agreement is intended specifically to 'prevent abuse arising from the use of successive fixed-term employment contracts or relationships'.

65 To this end, clause 5 imposes on Member States the obligation to introduce into domestic law one or more of the measures listed in clause 5(1)(a) to (c) where equivalent legal provisions intended to prevent effectively the misuse of successive fixed-term employment contracts do not already exist in the Member State concerned.

66 Among those measures, clause 5(1)(a) envisages 'objective reasons justifying the renewal of such contracts or relationships'.

67 The signatory parties to the Framework Agreement considered that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see paragraph 7 of the general considerations in the Framework Agreement).

68 It is true that the Framework Agreement refers back to the Member States and social partners for the detailed arrangements for application of the principles and requirements which it lays down, in order to ensure that they are consistent with national law and/or practice and that due account is taken of the particular features of specific situations (see paragraph 10 of the general considerations in the Framework Agreement). While the Member States thus have a margin of appreciation in the matter, the fact remains that they are required to guarantee the result imposed by Community law, as follows not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70 read in conjunction with the 17th recital in its preamble.

69 In those circumstances , the concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.

70 Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.

71 On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of statute or secondary legislation does not accord with the requirements as stated in the preceding two paragraphs.

72 Such a provision, which is of a purely formal nature and does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect.

73 Thus, to admit that a national provision may, automatically and without further precision, justify successive fixed-term employment contracts would effectively have no regard to the aim of the Framework Agreement, which is to protect workers against instability of employment, and render meaningless the principle that contracts of indefinite duration are the general form of employment relationship.

74. More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.

75 Consequently, the answer to the second question must be that clause 5(1)(a) of the Framework Agreement is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of 'objective reasons' within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out."

25. The same approach was adopted by the Court of Justice in Impact v Minister for Agriculture and Food (above) at paragraph 90 when it held

"… Member States are required under Article 10 EC and the third paragraph of Article 249 EC, as well as under Directive 1999/70 itself, to take any appropriate measure, whether general or particular, to achieve the objective of that directive and of the framework agreement of preventing the abusive use of fixed-term contracts."

26. A similar approach was taken by the Court in Del Cerro Alonso [2007] ECR1/7109 which held the following:

"55 More specifically, recourse to fixed-term employment contracts solely on the basis of a general provision, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose (Adeneler and Others, paragraph 73).

56 The same interpretation is necessary, by analogy, regarding the identical concept of 'objective grounds' within the meaning of clause 4(1) of the framework agreement.

57 In those circumstances, that concept must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the basis that the difference is provided for by a general, abstract national norm, such as a law or collective agreement."

27. There is scope in the FTER for justification but this must relate to the specific task or employment, as illustrated in Adeneler (above). These factual justifications were all dismissed by the Employment Tribunal. A general opt-out is impermissible and so the Respondent's justification fails this test.
28. In considering whether it is correct for the Respondent to assert that he is bound by a superior obligation founded upon the Staff Regulations to that arising under the FTER, it is necessary first to consider the nature of the 1994 Statute providing for the Staff Regulations, and secondly what specific obligations are imposed on a government as a result of internal obligations. The Vienna Convention on the Law of Treaties 1969 makes provision for the application of successive treaties relating to the same subject matter:

"3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation … the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty."

29. This is an elementary principle and also a canon of construction in English law. To put it in context, the 1996 Staff Regulations were made pursuant to the 1994 Statute. The 1999 Directive and Framework Agreement was made under the EU Treaty by the same Member States and thus must be taken, where it conflicts with the 1994 Statute or the 1996 Staff Regulations, to have succeeded it.
30. A different route to the same conclusion is posited by Hartley in The Foundations of European Community Law 6th ed OUP. In citing the "constitutive treaties" of the Community he does not cite the 1994 Statute. He plainly regards it as a "subsidiary convention" with which, with respect, we agree. He then says this:

"What would the position be if there were a conflict between a subsidiary convention and one of the constitutive Treaties or a legislative act under such a Treaty? This must be determined by international law. As stated above, the relevant principles are laid down by Article 30 of the 1969 Vienna Convention on the Law of Treaties. It will be remembered that the rule is that if the parties to the two treaties are the same, the later one prevails unless it provides that the earlier one takes priority. Many subsidiary conventions contain a proposition of this kind (For example, Art. 20 of the Rome Convention of 1980 states that Community acts which 'in relation to particular matters' lay down choice of law rules regarding contractual obligations will prevail over the Convention, whether they are adopted before or after the latter.)

What is the position where there is no such provision? It is suggested that where the parties to a treaty create a new legal system, and a later treaty is adopted within the context of that legal system and is intended to form part of it, the parties may, in the absence of evidence to the contrary, be regarded as having intended that it should be subject to the treaties that created the system. The reasonableness of such a rule is supported by Article 5 of the Vienna Convention, which states that the Vienna Convention applies to a treaty which is the constituent instrument of an international organization, and to any treaty adopted within an international organization, without prejudice to the relevant rules of the organization. Admittedly, this provision cannot affect a rule of customary international law that would have applied independently of the Vienna Convention. Nevertheless, it is consistent with the idea that the principle in Article 30 should be applied flexibly in such a situation (For further arguments, see Pescatore, l'ordre juridique des Communautes europeenes [1975], pp. 143-4.)

A similar argument applies where there is a conflict between a subsidiary convention and a Community act such as a regulation or directive. Community acts are adopted by the Community institutions under powers granted by the constitutive Treaties. If the subsidiary convention does not override the Treaties, it cannot affect the legislative powers conferred by them; consequently, acts adopted under those powers also cannot be affected. (See the opinion to this effect of the legal service of the Council. Document R/697/78 of 28 March 1978. It is also of interest to note that the legal service opinion states that a provision of national legislation enacted in implementation of a directive will also prevail over a conflicting provision in a subsidiary convention: ibid 5.) It follows from this that, even in the absence of an express provision in the convention, the Community act will prevail."

31. Applying this analysis which we hold to be correct, the Directive must prevail over anything in the 1994 Statute and certainly over the Staff Regulations, which are not provisions of any Treaty.
32. Reference might also be made to the decision-making process of the Board of the Schools. Whereas legislation created by the European Union is required to go through lengthy processes of consultation and agreement with the formulation and publication of drafts throughout the organs of the European Union, no such obligation is imposed upon the Board. It is too simplistic to say that because the Board comprises representatives of each of the Member States, and the Member States also constitute the sovereign body of the European Union, anything done by the Board has legislative effect. In our judgment, it is not right for the Board of the European Schools to elect to have a 9 year rule where such a provision is outlawed by the Directive unless justified. It is clear that such Member States may not enter into obligations with non-Member States in conflict with their treaty obligation and we do not see why that rule should be relaxed for what are essentially multi-lateral agreements with the other Member States outside the rigour of the law-making process of the European Union.
33. In Commission of the European Community v The Council of the European Communities [1971] ECR 1/263 the Court said this:

"17. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.

18. As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system.

19. With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations.

22. If these two provisions are read in conjunction, it follows that to the extent to which Community rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope."

To similar effect in relation to bilateral agreements between Member States is the judgment of the Court in Matteucci [1988] ECR 5589 at paragraphs 14, 17-19 and of the Court in Gottardo [2002] ECR 1/413 at paragraphs 30-33.

34. We can answer the questions drafted for us for submission to the European Court of Justice, without doing so. It was open to the Respondent, by his own evidence or that of the Troika, to prove on the particular facts of the teaching relationship in the European Schools, that fixed-term contracts were necessary. His attempts to do so all failed. Since there is nothing peculiar about the length of employment of a teacher by the Respondent at Culham there is no reason why he should not have the benefit of the FTER, derived from the Directive. We can see the practical problem facing the Respondent who has been advised that he is correct in law to assert the primacy of his obligation under the Staff Regulations over the FTER. We can see his difficulty in persuading the other members of the Board to change the 9 year rule because the Employment Appeal Tribunal in Great Britain (albeit with the authority and powers of the High Court and Court of Session: Employment Tribunals Act 1996 s29) has said it is unlawful. We accept the proposition advanced by the Claimant that it is illogical to say that a ground which cannot be justified can yet be justified by reason of the fact that 27 members agree to it.
35. The appeal is dismissed. Permission to appeal is given, as sought. We direct that steps be taken to allow any appeal to catch up with Duncombe v The Secretary of State for Children, Schools and Families (UKEAT/0433/07) so that the Court may, if so minded, hear it at the same time since they relate to the European Schools and the FTER. If it were to refer to the European Court, the questions are set out in paragraph 3 above.